CANONICAL  ELECTIONS 


Dissertation 

SUBMITTED  TO  THE  FACULTY  OF  THEOLOGY  OF 
THE  CATHOLIC  UNIVERSITY  OF  AMERICA 

IN  PARTIAL  FULFILLMENT   OF  THE  REQUIREMENTS 
FOR  THE  DEGREE 

DOCTOR  OF  CANON  LAW 


By  DANIEL  M.  GALLIHER,  O.  P.,  J.  C.  L. 

Catholic  University  of  America 

1917 


isae 


5 

libera 


Ys7 


Columbia  ®niberatp 
m  tfie  Cttp  of  J^eto  |9orfe 


LIBRARY 


\  V:-'  ■ 


CANONICAL  ELECTIONS 


Dissertation 

SUBMITTED  TO  THE  FACULTY  OF  THEOLOGY  OF 
THE  CATHOLIC  UNIVERSITY  OF  AMERICA 


IN  PARTIAL  FULFILLMENT   OF  THE  REQUIREMENTS 
FOR  THE  DEGREE 


DOCTOR  OF  CANON  LAW 


By  DANIEL  M.  GALLIHER,  O.  P.,  J.  C  L. 

Catholic  University  of  America 

J9J7 


Nihil  Obstat: 


*  THOMAS  J.  SHAHAN,  S.  T.  D., 

Censor  Deputatus. 


Imprimatur : 

«*J.  CARD.  GIBBONS, 

Archiepiscopus  Baitimorensis. 


Approbatio  Ordinis 
Nihil  Obstat: 

FR.  JOSEPHU5  KENNEDY,  O.   P.,  S.   T.   M. 
FR.  AUGUSTINUS  WALDRON,  O.  P.,  S.  T.  M. 


Imprimatur : 

FR.   RAVMUNDLS    MEAGHER,  O.   P..  S.  T.  L., 

Prior  Provincialis. 


33C 


The  Rosary  Press,  Somerset,  Ohio 
1917 


*k 


<r~ 


A- 

» 

or 


CANONICAL  ELECTIONS 


CONTENTS 

Introduction  5 

Historical  Concept   7 

Juridical  Concept   21 

Qualifications  of  Electors 31 

Convocation  of  Electors 45 

Persons  Eligible 54 

The  Act  of  Election 67 

Postulation  83 

Defects  in  Election 87 

Subsequent  Acts  96 

Appendix — I.  Manner  of  Electing  a  Sovereign  Pontiff 104 

II.   Method  of  Selecting  Bishops  in  the  United 

States 107 

Sources  and  Bibliography Ill 


INTRODUCTION 


There  is  no  institution,  perhaps,  that  occupies  a  more  prom- 
inent place  in  the  entire  history  of  ecclesiastical  legislation  than 
canonical  election.  For  the  Church  during  the  almost  twenty 
centuries  of  her  active  life  has  promulgated  for  no  other  institu- 
tion such  a  vast  and  varied  array  of  enactments,  decrees,  and  con- 
stitutions. This  ancient  method  of  ecclesiastical  provision — 
established  by  the  Twelve  in  the  designation  of  their  successors— 
at  times  almost  lost  itself  in  the  perilous  conditions  and  numerous 
persecutions  of  the  early  Church,  only  to  come  forth  time  after 
time  with  renewed  strength  and  vigor.  During  the  first  centuries 
of  the  Christian  era  the  system  remained  weak,  unstable,  and 
undetermined.  And  even  long  after  peace  had  been  established 
in  the  Church,  it  failed  to  take  on  a  definite  form.  The  Church 
by  her  laws  and  decrees  had  continually  endeavored  to  place 
canonical  election  on  a  firm  and  orderly  basis,  but  through  cir- 
cumstances of  times,  places,  and  persons,  her  efforts  were  frus- 
trated, and  it  was  not  until  the  celebration  of  the  Fourth  Lateran 
Council  in  1215  that  she  succeeded  in  accomplishing  her  end. 

Canonical  elections  in  the  early  Church  were  limited  to  the 
designation  of  the  successors  of  Saint  Peter,  and  to  the  nomina- 
tion of  bishops.  But  the  rise  and  growth  of  religious  orders  oc- 
casioned an  extension  in  the  discipline  of  canonical  election,  which 
became  the  natural  and  ordinary  way  of  selecting  religious  supe- 
riors. The  method  adopted  by  religious  institutes  was  later  in- 
troduced into  the  chapters  of  the  secular  clergy.  The  chapters 
of  cathedral  churches  not  only  obtained  the  exclusive  right  of 
electing  bishops,  but  also  of  providing  for  other  dignities  and 
capitular  offices  by  canonical  election. 

And  after  weathering  the  storms  of  twenty  centuries  the 
institution  of  canonical  election  still  occupies  an  important  posi- 
tion in  the  ecclesiastical  discipline  of  today.  For  not  only  Roman 
Pontiffs,  but  also  many  bishops  are  thus  chosen.  Vicar  capitulars 
are  placed  over  vacant  sees  by  canonical  election  of  cathedral 
chapters.  This  mode  of  provision  is  also  used  to  a  large  extent 
among  regulars  and  in  congregations  of  men  and  women  under 
simple  vows.  But  perhaps  nowhere  does  it  obtain  with  more 
accuracy  and  universality  than  in  the  distinctively  democratic 


6  CANONICAL    ELECTIONS 

legislation  of  the  Order  of  Friars  Preachers,  where  not  only  gen- 
erals and  provincials,  but  even  local  prelates  are  canonically 
elected. 

The  writer,  having  the  happy  privilege  of  belonging  to  this 
religious  institute,  in  which  canonical  election  with  all  its  solem- 
nity plays  so  prominent  and  important  a  role,  has  thought  it  well 
worth  the  while  to  make  a  careful  study  of  the  legislation  on  the 
matter.  It  is  well  nigh  impossible  to  find  a  clear  and  concise 
notion  of  the  doctrine,  for  the  various  decrees  and  constitutions 
dating  far  back  into  the  centuries  are  filled  with  innumerable 
difficulties  and  obscurities.  The  subject  is  too  vast  and  extensive 
to  allow  a  complete  exposition  of  it  within  the  limits  of  this  dis- 
sertation, but  the  more  important  features  pertaining  to  the  mat- 
ter have  been  carefully  set  forth.  Avoiding  wearisome  and  con- 
fusing details,  the  writer  has  tried  to  set  forth  whatever  is  in- 
cluded in  the  sacred  canons  as  briefly  and  as  clearly  as  the  mat- 
ter itself  may  allow. 

The  subject  will  be  treated  under  the  following  heads :  I.  The 
historical  and  juridical  concepts  of  canonical  election.  II.  The 
conditions  for  active  and  passive  voice.  III.  The  forms  of  elec- 
tion and  vitiating  circumstances.  IV.  Subsequent  acts.  V.  The 
present  discipline  of  electing  a  Roman  Pontiff,  and  the  recent  leg- 
islation on  the  method  of  proposing  candidates  for  bishoprics  in 
the  United  States. 


CHAPTER  I 
Historical  Concept 

Just  as  Christ,  Our  Lord,  freely  called  the  apostles  to  the 
work  of  the  apostolate  and  constituted  them  the  first  pastors  of 
the  Church,  so  also  the  apostles  themselves  placed  others  over 
the  churches  they  had  founded.  The  first  election  conducted  by 
the  apostles  was  that  of  Matthias.  Peter  rising  up  in  the  midst 
of  his  brethren  reminded  them  that  they  must  choose  a  successor 
for  the  apostolate  of  Judas  and  that  this  successor  must  be 
chosen  from  those  who  had  accompanied  Jesus  in  His  journeys 
among  men  and  who  had  witnessed  His  ascent  into  heaven.  The 
Scriptures  go  on  to  tell  us  that  two  were  appointed :  Joseph  and 
Matthias  and  that  the  lot  fell  upon  Matthias  and  he  was  num- 
bered with  the  eleven  apostles.1  Peter  alone  of  all  the  apostles 
had  ordinary  power  over  the  entire  Church  and  consequently  his 
power  alone  was  handed  down  to  his  successors — the  extraordi- 
nary jurisdiction  enjoyed  by  the  other  apostles  expired  with  them. 
Thus  the  Roman  Pontiff  alone,  the  successor  of  Peter,  could  con- 
stitute bishops  with  the  same  right  by  which  Peter  had  consti- 
tuted them.    This  was  the  most  ancient  discipline  of  the  Church. 

In  the  course  of  time  when  episcopates  had  been  instituted, 
their  regions  were  extended  and  provinces  were  divided.  This 
rendered  the  appointing  of  bishops  slow  and  difficult  and  since 
the  good  of  the  Church  demanded  a  modification  of  discipline, 
the  Holy  See  committed  the  right  of  election  to  the  people,  clergy 
and  bishops  of  the  different  churches.  So  in  the  early  ages  of  the 
Church  elections  contained  these  three  elements  :  the  people,  the 
clergy  and  the  bishops.  The  people  presented  the  candidates  and 
furnished  testimony  as  to  their  fitness ;  the  clergy  voted  on 
them,  and  the  bishops  confirmed  and  consecrated  them.  Of 
greater  moment,  however,  was  the  suffrage  of  the  clergy  than 
the  testimony  of  the  people.  But  of  still  greater  account  was 
the  authority  of  the  bishops  assembled  in  provincial  synods,  hear- 
ing, weighing,  now  approving,  now  rejecting  the  votes  of  the 
clergy  and  the  testimony  of  the  people.  Saint  Cyprian2  says 
that  the  supreme  power  of  electing  candidates  worthy  of  the 


'Acts  I. 
3  L.  I.  Ep.  4. 


8  CANONICAL    ELECTIONS 

episcopate  and  of  rejecting  the  unworthy,  lies  with  the  people, 
but  in  these  words  is  signified  only  the  conscience  and  testimony 
of  the  people,  who  are  better  acquainted  with  the  virtues  and 
vices  of  the  candidates.  Many  things  concerning  the  candidates, 
of  which  the  people  were  well  aware,  were  unknown  to  the  bish- 
ops. With  the  freedom,  therefore,  and  the  necessity  of  making 
known  whatever  they  knew  of  the  morals  and  the  actions  of 
those  who  were  invited  to  the  episcopate,  elections  appeared  to 
be  in  the  power  of  the  people.  The  testimony  of  the  people,  how- 
ever, was  not  unquestionable,  but  frequently  uncertain,  incon- 
stant, divided  and  corrupted,  hence  the  supreme  power  of  exam- 
ining, approving  and  disapproving  always  lay  with  the  bishops, 
by  whose  judgment  episcopal  elections  finally  became  orderly 
and  constant. 

It  is  certain  that  orders  inferior  to  the  episcopate  pertained 
to  the  will  and  power  of  the  bishops,  although  they  were  not  con- 
ferred upon  any  one  without  consulting  the  clergy  and  the  people. 
Bishops,  therefore,  enjoyed  the  right  and  power  to  choose  clerics 
and  beneficiaries  of  their  own  churches,  but  since  circumstances 
prevented  them  from  knowing  the  morals  and  ability  of  the  can- 
didates, they  were  forced  to  rely  upon  the  testimony  of  the  clergy 
and  the  people.  When,  however,  the  piety  and  morals  of  the 
candidate  were  so  manifest,  that  no  further  testimony  was 
needed,  the  bishop  would  ordain  him  and  then  notify  the  clergy 
and  the  people  of  the  fact.  Thus  Cornelius  tells  us  that  Theoctis- 
tus,  Bishop  of  Caeserea,  ordained  Origen  in  218  A.  D.1  And  in 
like  manner  Cyprian  ordained  Aurelius,  who  later  (388)  became 
the  illustrious  archbishop  of  Carthage.2 

After  the  time  of  Constantine,  the  people  still  continued  to 
have  a  part  in  episcopal  elections.3  In  the  Second  Council  of 
Carthage,  217  A.  D.,  provincial  bishops  were  forbidden  to  ordain 
one  whom  the  people  presented,  unless  he  were  confirmed  by  the 
metropolitan.4  The  Third  Council  of  Carthage,  251  A.  D.,  decreed 
that  if  two  or  three  bishops  elected  a  candidate,  he  might  be  or- 
dained provided  he  could  exonerate  himself  before  the  people  of 
all  the  crimes  with  which  he  was  charged.5  Of  such  regard  were 
the  good  morals  of  the  elect,  that  they  must  have  as  many  wit- 
nesses as  there  were  voices  among  the  people.  The  Fourth  Coun- 
cil of  Carthage,  252  A.  D.,  drew  up  a  formula  to  examine  the  faith 

1  Eusebius  VI.  n.  23. 

2  Epistles  of  Cyprian,  Book  3,  n.  22. 
"Optatus,  L.  I. 

4C.  12. 
5  C.  40. 


CANONICAL    ELECTIONS  V 

and  morals  of  the  bishops  elect,  but  the  clergy  and  people  assent- 
ing, this  could  be  omitted  and  the  elect  consecrated  with  the  con- 
sent and  in  the  presence  of  the  metropolitan.  Provision  was 
made  in  the  Fifth  Council  of  Carthage,  253  A.  D.,  lest  the  bishop 
to  whom  the  government  of  a  vacant  see  had  been  entrusted 
should  be  elected  to  that  see,  no  matter  how  much  the  people 
might  desire  it. 

Thus  through  the  first  five  centuries  the  principal  part  in 
episcopal  elections  was  taken  by  the  bishops,  more  especially  by 
the  metropolitan.  The  history  of  these  centuries  tells  of  many 
instances  of  episcopal  elections,  which  neither  the  clergy  nor  the 
people  desired.1  Leo  I  in  very  forceful  words  forbade  the  bishops 
to  accede  to  the  tumultuous  postulations  of  the  people  or  to  be 
influenced  by  the  votes  of  an  unlettered  and  violent  multitude. 
The  same  Pontiff  prescribed  that  where  the  votes  of  the  electors 
were  divided,  the  metropolitan  should  give  the  bishopric  to  the 
one  who  excelled  in  merit  and  virtue.  This  right  alone  belonged 
to  the  people  that  there  could  be  forced  upon  them  no  bishop 
whom  they  had  continually  refused  and  whom  they  were  unwill- 
ing to  receive,  and  secondly,  that  the  obedience  which  they  were 
to  render  should  be  in  accordance  with  christian  liberty.  To  these 
two  considerations  the  bishops  could  limit  them  in  elections. 

During  these  centuries  not  only  bishops,  clerics  and  the  laity, 
but  princes  and  emperors  were  important  factors  in  episcopal 
elections.  It  seemed  to  the  Roman  Pontiffs  and  the  bishops  that 
christian  nobles  and  magist.^tes  should  be  worthy  of  more  con- 
sideration than  the  people,  and  that  their  part  in  the  suffrage 
should  be  of  greater  import.  This  must  not  be  imputed  to  un- 
seemly adulation  or  partiality  to  worldly  potentates,  but  it  sim- 
ply signified  that  these  men  were  eminent  not  only  for  power  and 
birth  but  for  wisdom,  zeal  and  charity  to  the  Church  far  more 
sincere  than  that  of  the  people,  who  were  easily  influenced  by 
empty  words,  and  led  astray  by  the  hope  of  gain.  And  if  the 
Church  thought  fit  to  make  concessions  to  the  nobles  and  mag- 
istrates, for  a  greater  reason  was  it  proper  that  she  should  make 
more  ample  concessions  to  the  supreme  rulers,  as  heads  of  the 
people  and  the  whole  republic,  whose  prudence  and  sagacity, 
whose  love  for  the  Church  and  whose  power  to  promote  the  pub- 
lic good  were  greater  than  those  of  the  people.  If  then  the  peo- 
ple were  not  to  be  excluded  from  the  elections,  neither  were  their 
princes  and  emperors.  Although  the  influence  of  the  princes  in 
episcopal  elections  was  incalculable  and  in  time  gave  rise  to  many 

1  Sidonius,  L.  4.  Ep.  25;    Ambrosius,  Ep.  59,  82. 


10  CANONICAL    ELECTIONS 

and  shameful  abuses,  still  it  must  here  be  noted  that  their  con- 
sent never  in  any  way  affected  the  validity  of  the  elections. 

II.  From  the  fifth  to  the  eighth  centuries  the  people  and 
clergy  enjoyed  the  same  liberty  of  former  ages  in  episcopal  elec- 
tions. Gregory  the  Great,  writing  to  the  Duke  of  Campania,  says 
that  the  primates  of  Naples  should  invite  the  people  to  take  part 
in  the  elections  of  other  bishops,  and  if  there  was  no  one  in 
Naples  worthy  of  episcopal  dignity,  they  should  send  to  Rome  the 
names  of  three  men  of  learning  and  approved  morals,  from  whom 
a  bishop  would  be  chosen  with  the  consent  of  the  whole  city.1 
Although  the  dukes,  governors  of  the  city,  the  nobility  of  the 
provinces  and  later  on  the  senate  and  the  people  played  an  impor- 
tant part  in  elections,  still  by  far  the  principal  actors  were  the 
clergy.  Gregory  afterwards  addresses  the  presbyters,  deacons 
and  clergy  of  Milan  concerning  a  bishop  to  be  elected  by  them.2 
And  writing  to  the  bishops  of  Epirus,  he  confirmed  an  election 
made  by  the  clergy  and  bishops  of  the  province.  Gregory  never 
wished  to  interfere  in  elections  except  when  necessity  demanded. 
His  one  aim  was  to  safeguard  the  rights  and  liberties  of  the 
churches  and  that  every  church  should  have  for  a  pastor  a  mem- 
ber of  its  own  clergy.  He  himself  had  been  elected  by  the  clergy, 
senate  and  Roman  people.3 

Pope  Symmachus  said  .that  the  clergy  and  the  people  should 
be  consulted  by  the  visiting  bishop  who  had  charge  of  the  vacant 
church  and  the  election.4  The  first  synod  of  Rome  under  the  same 
Symmachus  decreed  that  if  all  the  votes  of  the  Roman  clergy 
were  unanimous  for  one  candidate,  he  should  be  declared  bishop, 
but  if  they  were  divided  the  majority  should  prevail.  The  words 
of  this  synod  seem  to  imply  that  the  clergy  alone  enjoyed  suf- 
frage, but  it  is  generally  admitted  that  the  people  also  shared 
this  suffrage.  Pope  Hormisda  states  that  in  elections  the  Divine 
Will  is  manifested  by  the  voice  and  consent  of  the  people.5 
Vigilius,  however,  was  elected  pope  by  the  clergy  alone.6  In  sub- 
sequent elections,  the  people  were  re-admitted ;  first,  the  clergy 
would  elect,  then  the  most  prominent  of  the  laity  and  populace 
would  give  their  consent.  Sergius  was  raised  to  the  pontifical 
throne  by  the  clergy,  people  and  army. 

1  L.  2,  Ep.  15. 

2  L.  2,  Ep.  29. 

3  Joan.  Diac,  Vita  Greg.  M. 

4  Ep.  5. 

5  Ep.  25. 

6  Liberate  Breviar.  C.  22. 


CANONICAL    ELECTIONS 


11 


The  Second  Council  of  Orleans  decreed  that  the  new  bishops 
of  the  French  church  should  be  elected  by  the  provincial  bishops.1 
In  the  seventh  canon  of  the  same  Council  it  was  ordained  that  the 
bishops,  clergy,  and  people  should  elect  the  metropolitans  and 
the  election  should  be  celebrated  in  the  presence  of  all  the  bishops 
of  the  province;  but  for  the  election  of  a  bishop  there  should 
assemble  only  those  bishops  whom  the  metropolitan  would  call. 
The  difference  between  the  election  of  bishops  and  metropolitans 
was  clearly  denned  in  the  Third  Council  of  Orleans,  in  which  it 
was  prescribed  that  the  votes  of  both  the  clergy  and  the  people 
were  essential  to  all  elections  either  episcopal  or  metropolitan; 
but  for  the  election  of  a  bishop,  the  presence  of  one  metropolitan 
sufficed,  while  for  a  metropolitan  all  the  provincial  bishops  must 
be  present.2 

An  additional  clause  to  the  above  discipline  was  added  in  the 
Fifth  Council  of  Orleans  to  the  effect  that  no  bishop  might  take 
possession  of  his  see  without  the  consent  or  permission  of  the 
king.  In  the  Third  Council  of  Paris,  all  elections  were  declared 
null  and  void,  which  were  brought  about  by  the  authority  of  the 
prince  alone,  because  sometimes  these  unreasonable  monarchs 
not  rarely  abused  their  power  to  conduct  elections  with  no  inter- 
vention of  the  clergy  or  consent  of  the  people/1  With  no  less  con- 
stance  did  the  Fifth  Council  of  Paris  condemn  this  unlawful  and 
violent  procedure  and  it  ordained  that  the  successors  of  deceased 
bishops  should  be  chosen  by  the  metropolitan,  clergy  and  people 
of  the  city,  without  any  influence  or  bribes  of  secular  authority ; 
and  if  any  election  should  be  otherwise  effected,  the  same  should 
be  considered  invalid  according  to  the  statutes  of  the  Fathers.4 
This  statute  was  confirmed  by  a  royal  document  of  Clotaire  II. 
There  was  left  to  the  prince  the  privilege  of  confirming  one  whom 
the  bishops,  clergy  and  people  had  elected  and  also  of  sending  a 
bishop  from  his  palace  to  vacant  churches,  with  the  understand- 
ing that  the  metropolitan  and  bishops  had  the  power  of  examin- 
ing and  of  not  ordaining  him  unless  his  virtues  and  merits  were 
clearly  manifest.  But  it  cannot  be  denied  that  many  princes 
exerted  an  evil  influence  over  elections  and  that  at  times  the  bish- 
ops and  clergy  were  but  the  medium  of  electing  him  whom  the 
prince  had  already  named.  There  were  times  also  when  the 
bishops  invited  the  king  to  suggest  the  names  of  those  whom 

1  Can.  I. 

2  Can.  III. 
'Can.  VIII. 
4  Can.  I. 


12  CANONICAL    ELECTIONS 

they  considered  fit  for  the  episcopate — never,  however,  to  the 
exclusion  of  the  clergy's  suffrage  and  the  people's  consent. 

In  Spain  the  Council  of  Barcelona  reserved  elections  to  the 
clergy  and  people  in  this  way,  that  they  might  name  two  or  three 
persons,  from  whom  the  metropolitan  and  provincial  bishops 
would  choose  the  one  who  seemed  to  them  best  fitted  for  the 
office.1  In  the  same  canon  the  intervention  of  royal  power  in  the 
elections  was  clearly  insinuated,  but  the  Fifth  Council  of  Toledo 
makes  no  reference  to  it  and  places  everything  in  the  will  of  the 
people,  clergy  and  bishops.  Martin,  bishop  of  Braga,  forbade  the 
people  to  mingle  in  the  elections,  contending  that  bishops  should 
be  elected  by  bishops,  as  they  alone  were  qualified  to  judge  the 
fitness  of  candidates.  But  this  prohibition  was  not  enforced  and 
the  people  always  had  a  part  in  the  elections.  The  bishops  would 
listen  to  the  wishes  of  the  clergy  and  to  the  testimony  of  the 
people  and  then  proceed  to  elect  the  bishop  themselves.  From 
the  Fourth  to  the  Twelfth  Councils  of  Toledo  in  the  year  681 
there  are  no  traces  of  royal  interference  in  elections ;  during  this 
interval  the  bishops  enjoyed  absolute  power  and  even  presided 
at  the  elections  of  the  nobility.-  Some  documents  of  the  Twelfth 
Council  are  extant,  whereby  the  power  of  nominating  bishops  is 
attributed  to  the  kings. 

Augustine  was  constituted  bishop  of  England  by  Pope  Greg- 
ory and  by  papal  command  consecrated  by  French  bishops.  This 
method  was  necessarily  resorted  to  because  in  the  English  Church 
— at  that  time  springing  into  new  life — there  were  no  persons 
capable  of  electing  a  bishop.  But  once  the  Church  of  England 
was  again  firmly  established,  there  are  many  instances  of  elec- 
tions carried  on  in  the  ordinary  manner  of  the  times.  We  read 
in  Bede's  English  History3  that  Saint  Cuthbert  was  elected 
bishop  of  Lindisfarne  in  a  council  presided  over  by  the  archbishop 
Theodore  and  in  the  presence  of  King  Egfrid.  And  so  on 
throughout  the  following  ages  of  this  period,  one  council  after 
another  ordained  that  bishops  should  be  present  at  all  elections 
and  if  absent  should  be  represented  by  letters  in  which  their  con- 
sent was  expressed.  But  these  wise  regulations  were  not  always 
observed  and  the  ecclesiastical  affairs  of  England  were  often  in 
a  troubled  state.  King  Alfred  sent  Wilfrid,  whom  he  had  made 
a  presbyter,  to  France  to  be  consecrated  by  French  bishops.  At 
the  same  time  Cead  was  created  bishop  of  York  by  command  of 

1  Can.  III. 

a  Cone.  Tol.  VIII,  Can.  X. 

3  Book  III,  C.  22-28. 


CANONICAL    ELECTIONS 


13 


King  Osuf.1    These  centuries  also  abound  with  numerous  exam- 
ples of  royal  intervention  in  elections. 

Elections  in  Africa  were  conducted  with  much  difficulty.  The 
primate  or  metropolitan  would  send  a  provincial  bishop  to  pre- 
side at  elections.  Very  frequently  the  clergy  and  people  had  long 
and  bitter  dissensions  over  the  proposed  candidates.  This,  how- 
ever, was  the  least  of  the  troubles.  Genseric,  king  of  the  Vandals, 
in  his  tyrannical  and  cruel  persecution,  drove  all  the  bishops  into 
exile  and  would  not  permit  others  to  be  ordained.  At  the  request 
of  Emperor  Valentinian  he  consented  that  Deogratias  be  made 
bishop  of  Carthage.  This  bishop  lived  but  three  years  and  after 
his  death  no  bishops  were  created  in  the  proconsular  province  of 
Africa  and  the  one  time  number  of  one  hundred  and  sixty-four 
was  reduced  to  three.-  Genseric  was  succeeded  by  his  son,  Hun- 
eric,  who  allowed  Emperor  Zeno  and  Empress  Placidia  to  appoint 
a  bishop  to  the  see  of  Carthage— which  had  been  vacant  for 
twenty-four  years — on  condition  that  the  Emperor  in  turn  would 
grant  the  Arians  full  liberty  of  religion  throughout  the  vast 
empire.  The  bishops  protested  against  the  see  of  Carthage  being 
filled  at  so  great  a  sacrifice  to  the  universal  Church,  but  the  peo- 
ple were  enraged  at  this  protest  and  proceeded  to  an  election  with 
such  violence  that  the  bishops  were  powerless  either  to  prevent 
or  postpone  it.  This  state  of  affairs  gradually  became  brighter, 
and  the  African  bishops,  choosing  to  obey  a  heavenly  rather  than 
an  earthly  king,  elected  bishops  for  every  vacant  see  in  the 
African  church.  They  were  moved  by  the  hope  that  they  could 
appease  the  wrath  of  the  Vandal  king,  or  that  if  the  churches 
could  not  have  bishops  they  would  at  least  have  martyrs.  Hil- 
deric,  the  successor  of  Huneric,  banished  all  these  prelates,  but 
his  successor  Trasamund,  desiring  to  reign  in  peace  and  tran- 
quillity, permitted  elections  to  be  celebrated  with  absolute 
freedom.3 

III.  From  the  eighth  to  the  tenth  century  elections  were 
conducted  in  much  the  same  way  is  in  former  years.  Under  the 
reign  of  Charlemagne  unrestricted  liberty  prevailed.  Hadrian  I 
advised  him  never  to  interfere  in  the  elections,  and  he  himself 
set  the  example  by  declaring  that  he  would  in  no  way  infringe 
upon  the  freedom  of  suffrage  of  the  clergy  and  people.4 

In  Italy  the  bishops  of  Ravenna  were  always  elected  by  the 
clergy  and  people,  neither  the  legates  of  the  Roman  Pontiff  nor 

*  Bede  V,  20. 

2  Victor — History  of  Vandal  Persecutions  III. 

3  lb.  C.  28. 
"Thomassin  V,  p.  108. 


14  CANONICAL    ELECTIONS 

those  of  the  king  having  any  voice  in  the  matter.  But  the  arch- 
bishop of  Ravenna  could  not  ordain  provincial  bishops  without 
the  consent  of  the  pope.  Bishops  of  the  province  of  Milan  were 
elected  by  the  clergy  and  people,  confirmed  by  the  pope  and  king, 
and  ordained  by  the  metropolitan.  But  by  far  the  most  promi- 
nent feature  of  the  episcopal  elections  in  the  Italian  peninsula 
was  the  authority  of  the  bishops  ;  we  can  find  very  few  instances 
of  any  bishops  having  been  elected  without  the  consent  of  all  the 
provincial  bishops.1 

From  what  has  been  said  it  can  easily  be  seen  that  there  is 
no  foundation  for  the  assertion  made  by  Sigebert  in  his  chronicles 
that  Hadrian  bestowed  on  Charlemagne  the  power  of  electing 
the  Roman  Pontiff  and  of  investing  archbishops  and  bishops. 
Sigebert  published  this  fable  for  the  first  time  three  hundred  and 
thirty  years  after  the  death  of  Hadrian.  In  the  time  of  Charle- 
magne the  question  of  investitures  was  not  dreamed  of,  but  in 
the  time  of  Sigebert  the  whole  world  was  aroused  over  it,  for 
Emperor  Henry  claimed  the  right  for  himself.  Furthermore,  the 
controversy  over  investitures  arose  at  a  date  later  than  that  of 
the  fictitious  Roman  Synod,  which  according  to  Sigebert  was 
held  in  the  year  774. 

It  is  true  indeed  that  Zachary  conferred  on  King  Pepin  the 
power  of  nominating  bishops,  but  this  was  nothing  more  than  a 
dispensation  which  the  nature  of  the  troublous  times  demanded. 
We  admit  that  San  Gallensis2  relates  some  episcopal  appoint- 
ments made  by  Charlemagne,  but  he  says  nothing  of  his  reasons 
for  thus  acting ;  he  passes  over  in  silence  the  workings  of  ambi- 
tious men,  the  artifices  of  unscrupulous  princes,  the  endeavors 
of  powerful  queens  to  have  clerics  of  their  families  decorated 
with  episcopal  dignity ;  he  does  not  even  mention  the  unyielding 
and  noble  stand  of  Charlemagne  that  only  pastors  worthy  of  the 
high  office  be  placed  over  churches.  But  aside  from  the  fact  that 
the  truthfulness  and  authority  of  San  Gallensis  are  questioned 
among  learned  men,  it  must  furthermore  be  noted  that  the  evils 
of  the  times  and  the  varying  conditions  could  have  compelled 
Charlemagne  not  to  allow  the  churches  to  remain  vacant,  nor  to 
permit  dissensions  to  be  protracted.  Even  granting  that  the 
nominations  really  took  place,  they  are  facts,  not  rights  ;  they 
are  examples,  not  decrees. 

Charlemagne  conceded  to  the  French  clergy  absolute  free- 
dom in  episcopal  elections,  not  as  a  new  favor  or  kindness  but  as 

'Du  Chesne  III.  pp.  894-901. 
2T.  II,  p.  108. 


CANONICAL    ELECTIONS  15 

an  ancient  right  which  the  sacred  canons  conferred,  and  as  a 
liberty  belonging  to  the  Church,  whose  guardians  and  defenders 
kings  should  be.  Louis  the  Mild  began  his  reign  by  confirming 
the  concession  of  Charlemagne  and  by  granting  the  same  liberty 
in  the  elections  of  abbots.  Einhard  in  the  annals  of  825  A.  D. 
relates  that  Drugo,  brother  of  Louis,  was  canonically  elected 
bishop  of  Metz  by  free  suffrage,  to  which  Louis  gave  his  consent.1 
The  biographer  of  Louis  tells  us  that  not  only  the  emperor  and 
clergy,  but  also  the  nobles  and  people  took  part  in  the  election 
of  Drugo.  The  metropolitan  invested  the  bishop  by  placing  in 
his  hands  a  staff,  then  the  ceremony  was  immediately  repeated 
by  the  emperor  at  the  request  of  the  metropolitan.  Thus  from 
these  friendly  relations  between  ecclesiastical  and  secular  power 
began  investiture  by  the  emperor,  which  in  later  years  caused 
long  and  bitter  conflicts  between  popes  and  emperors. 

Although  in  the  elections  of  these  times  the  clergy  frequently 
prevailed  over  the  people  and  sometimes  the  people  over  the 
clergv.  canonical  freedom  always  remained  intact.  When  the 
kings  interfered  liberty  still  obtained,  for  they  either  approved 
of  the  one  chosen  by  the  clergy  and  people,  or  proved  to  them 
the  fitness  of  those  of  their  own  choice.  Of  such  a  nature  was 
the  election  of  Drugo. 

The  peace  and  concord  that  prevailed  in  the  reigns  of  Pepin, 
Charlemagne,  Louis  the  Mild  and  Charles  the  Bald  did  not  con- 
tinue under  their  successors.  The  latter  pretended  that  they 
were  heirs  not  only  to  the  kingdom,  but  also  of  royal  veneration 
and  deference  throughout  the  extent  of  the  universal  Church. 
But  conditions  were  greatly  bettered  by  the  prudence  and  firm- 
ness of  Hincmar,  archbishop  of  Rheims.  He  wrote  to  the  youth- 
ful kings  Louis  and  Caroloman.  reminding  them  how  favorably 
disposed  he  had  been  to  their  promotion  and  coronation,  but  he 
did  not  hesitate  to  say  what  were  the  limits  of  royal  and  ecclesi- 
astical authority,  and  how  willingly  secular  power  should  bow 
to  the  authority  of  the  Church  of  the  ages,  and  that  they  were 
bound  in  conscience  not  to  protract  the  widowhood  of  churches, 
either  by  preventing  elections  or  unreasonably  objecting  to  those 
already  held.2  After  the  reigns  of  Charles  the  Fat  and  Charles 
the  Simple  peace  and  liberty  were  to  a  great  extent  restored  in 
canonical  elections. 

Towards  the  end  of  this  period  wars  were  breaking  out  and 
raging  on  all  sides,  but  the  voice  and  authority  of  the  canons  were 

1  Du  Chesne,  lb.  p.  302. 

2  Flodoard  III,  c.  19. 


16  CANONICAL    ELECTIONS 

held  in  honor;  and  when  the  majesty  of  the  French  kings  was 
everywhere  assailed  by  insolent  tyrants,  it  was  cherished  most 
religiously  by  the  Church,  which  permitted  no  bishops  to  be 
placed  over  them  against  their  will.  And  although  bishops  could 
not  take  possession  of  their  sees  without  the  kings'  consent  and 
assistance,  this  was  not  injurious  to  the  free  elections  previously 
concluded,  for  if  the  royal  ministers  would  dare  to  hold  an  elec- 
tion themselves,  it  was  pronounced  a  violation  of  the  canons 
and  immediately  condemned.1 

The  elections  in  Spain  were  principally  conducted  by  the  pro- 
vincial bishops  or  by  those  of  another  province.  There  was  some 
interference  from  the  people  and  royalty  but  it  did  not  prevail 
over  the  authority  of  the  bishops.  Some  say  that  the  illustrious 
Eulogius  was  elected  archbishop  of  Toledo  by  the  voice  of  the 
people,  but  his  biographer  attributes  his  election  to  the  bishops 
alone.2 

In  England,  too,  the  authority  of  the  bishops  in  ecclesiastical 
elections  far  outweighed  that  of  the  people,  clergy  and  royalty. 
When  the  clergy,  monks  and  canons  were  each  striving  to  place 
a  bishop  on  the  episcopal  throne  of  Winchester,  Dunstan,  arch- 
bishop of  Canterbury,  put  an  end  to  the  controversy  by  appoint- 
ing Elphege,  just  as  he  had  appointed  his  predecessor  Ethelwold. 
In  the  biography  of  Saint  Dunstan,  the  author  ascribes  the  power 
of  electing  bishops  to  the  kings.  Such,  however,  was  not  the 
general  rule.  King  Edgar  did  nominate  Dunstan  to  the  see  of 
Worcester  in  957,  and  the  bishopric  of  London  becoming  vacant 
a  short  time  after,  he  was  compelled  at  the  same  time  also  to 
govern  that  diocese.  Dunstan  afterwards  appointed  Oswald  as 
his  successor  in  the  see  of  Worcester.  Finally  Dunstan  was 
raised  to  the  metropolitan  see  of  Canterbury  by  the  unanimous 
consent  of  the  adjacent  churches  and  people.3  These  few  excerpts 
from  the  life  of  Saint  Dunstan  show  the  common  practice  of  pro- 
viding for  vacant  churches  during  this  period. 

IV.  At  the  close  of  the  tenth  century  episcopal  elections  in 
the  Western  Church  embraced  these  three  elements :  the  prin- 
cipal electors  were  bishops,  the  clergy  exercised  more  power  than 
the  people,  the  consent  of  the  king  was  necessary.  The  people 
from  now  on  gradually  lost  their  hold  and  the  last  instance  we 
find  of  their  enjoying  active  voice  was  in  the  twelfth  century.4 

1  Du  Chesne,  lb.,  p.  489. 
2Hispan.  Illust.  Ill,  p.  894. 
:1  Thomassin,  lb.,  p.  151. 
4  lb.  c.  32,  n.  14. 


CANONICAL    ELECTION?  17 

In  the  year  1215  the  Fourth  Lateran  Council  under  Innocent  III 
excluded  the  people  and  provincial  bishops  from  episcopal  elec- 
tions, and  reserved  them  to  cathedral  chapters.  It  is  much  con- 
troverted as  to  when  the  intervention  of  the  royalty  was  removed. 
Some  hold  that  it  was  at  the  time  of  the  Second  Lateran  Council 
in  1139,  when  elections  were  reserved  to  the  bishops  and  clergy; 
others — and  more  probably — that  from  the  twelfth  to  the  four- 
teenth centuries  royalty  through  custom  gave  way  to  laws  which 
reserved  elections  to  the  diocesan  clergy,  and  consequently  to 
the  chapters  of  cathedral  churches.  Clement  V  in  the  year  1305 
reserved  to  himself  appointments  to  vacant  bishoprics  in  the 
diocese  of  Rome. 

The  successors  of  Clement  V  and  Benedict  XII  reserved  the 
elections  of  all  bishops  throughout  the  Church  to  the  Holy  See. 
The  reason  for  this  reservation  lies  in  the  fact  that  many  evils 
had  crept  into  the  elections,  which  evils  had  arisen  from  the  ambi- 
tion of  men,  from  dissensions  among  those  who  enjoyed  the  priv- 
ilege of  suffrage  and  from  the  unlawful  means  employed  to  ob- 
tain possession  of  episcopal  sees.  And  since  it  fell  to  the  Supreme 
Pontiff  to  supply  a  remedy  for  these  evils,  thus  it  was  that  he 
reserved  the  right  of  election  to  himself,  hoping  thereby  to  heal 
the  dissensions  and  to  promote  the  common  good  of  the  Church.1 

The  Holy  See  in  no  way  usurped  rights  that  did  not  belong 
to  it — as  some  have  wrongfully  contended,  but  merely  exercised 
its  own  right,  which  the  welfare  of  the  Church  and  the  nature  of 
the  times  demanded  that  it  exercise.  For  in  the  first  ages  of  the 
Church,  as  we  have  shown  above,  the  right  of  constituting  bish- 
ops belonged  to  the  Roman  Pontiff  alone,  who  for  just  reasons 
had  conceded  this  power  to  the  people,  clergy,  bishops  and  metro- 
politans. Since  all  these  abused  the  power  so  graciously  con- 
ceded, since  they  paid  no  attention  whatever  to  the  prescribed 
laws,  since  they  were  dominated  by  ambition,  simony  and  unlaw- 
ful desires,  it  was  but  right  and  just  that  the  power  of  creating 
bishops  should  return  to  him  in  whom  this  power  had  ever  re- 
sided, and  from  whom  his  inferiors  had  derived  it.2  Thus  by  the 
law  of  devolution  for  just  and  serious  reasons  the  ancient  disci- 
pline by  which  the  Supreme  Pontiff  constituted  bishops  again 
prevailed. 

It  was  not  long  before  fresh  troubles  arose  from  this  mode 
•of  procedure.  These  troubles  were  happily  ended  by  means  of 
concordats,  that  is,  agreements  entered  into  between  the  Apos- 

1  Leo  X.  Const.  "Primitiva." 

■  Ben.  XIV,  Const.  "In  postremo." 


18  CANONICAL    ELECTIONS 

tolic  See  and  the  most  powerful  princes  of  Europe.  Nicholas  V 
made  such  a  concordat  with  the  German  Empire,  in  virtue  of 
which  German  bishops  were  elected  by  the  canons,  but  confirmed 
by  the  Holy  See.1  Leo  X,  after  the  abrogation  of  the  pragmatic 
sanction,  which  the  pseudo-council  of  Basle  had  edited  against 
the  pontifical  reservations,  permitted  the  king  of  France  to  name 
a  worthy  candidate,  whom  the  pope  in  the  following  consistory 
would  create  bishop  of  the  church  for  which  he  had  been  named. - 
Finally  other  pacts  were  entered  into,  or  indults  or  privileges 
were  conceded  to  the  kings  of  Spain,  Portugal,  Panonia  and  to 
other  princes,  whereby  they  might  nominate  or  present  worthy 
candidates  for  their  own  cathedral  churches.3 

In  the  course  of  time,  either  through  custom  or  through 
privilege,  other  modifications  were  introduced  and  today  there 
are  four  ways  of  electing  bishops.  First,  by  free  collation  of  the 
Roman  Pontiff,  which  obtains  in  Italy,  Mexico,  in  provinces  gov- 
erned by  Vicars  Apostolic  and  in  France  since  the  violation  of  the 
concordat  in  1905.  Secondly,  by  the  recommendation  of  several 
candidates,  made  by  provincial  bishops  or  by  the  clergy  of  a  wid- 
owed church.  This  method  is  practiced  in  Belgium,  Canada,  Eng- 
land, Holland,  Ireland,  the  United  States  and  in  regions  subject 
to  the  Sacred  Propaganda.  Thirdly,  by  the  presentation  of  a  can- 
didate by  a  prince  or  patron.  This  privilege  is  enjoyed  in  Austria, 
Bavaria,  Spain,  Peru,  Portugal  and  Servia.  Fourthly,  by  canon- 
ical election  which  prevails  in  the  Austrian  archdioceses  of 
Olmiitz  and  Salzburg,  in  the  dioceses  of  Saint  Gallo,  Coire  and 
Basle  in  Switzerland,  in  some  States  of  Germany — notably  in  the 
ecclesiastical  province  of  the  Upper  Rhine,  and  in  Prussia. 

V.  Papal  elections  have  varied  considerably  at  different 
periods  in  the  history  of  the  Church.  Until  the  fourth  century 
they  were  conducted  in  the  same  manner  as  episcopal  elections.4 
After  this  time  the  kings  and  princes  of  Italy  began  to  take  a 
prominent  part  not  only  in  the  elections  of  bishops,  but  even  in 
those  of  the  Roman  Pontiff.  Odoacer,  King  of  Herculi.  who 
usurped  the  throne  of  Italy  in  476,  declared  that  Simplicius  pre- 
vious to  his  death  in  483  had  given  him  permission  to  take  part 
in  the  election  of  his  successor,  but  this  concession  was  pro- 
nounced invalid  by  the  clergy.     Symmachus,  who  was  raised  to 

1  Bull  "Ad  sacrament." 

2  Bull  "Pastor  aeternus." 

:i  Ad  Regul.  2.  Cancellar  I. 
4  S.  Clement  Ep.  I.  c.  44. 


CANONICAL    ELECTIONS  19 

the  pontifical  throne  in  498,  decreed  that  no  lay  persons — includ- 
ing the  royalty,  should  interfere  with  the  elections.  But  Theo- 
doric,  king  of  Italy,  compelled  the  Roman  clergy  to  elect  Felix 
IV;  they  did  so  on  condition  that  henceforth  they  were  to  enjoy 
absolute  liberty  in  elections.  This  condition  was  not  observed, 
and  it  gradually  came  to  pass  that  no  one  was  elected  who  was 
not  acceptable  to  the  royal  household.  King  Athalaric  prescribed 
that  on  two  candidates  being  elected  by  dissenting  parties,  the 
controversy  should  be  settled  in  the  king's  palace  and  that  the 
pontiff-elect  should  bear  all  the  expenses — which  he  fixed  at  the 
sum  of  three  thousand  crowns  of  gold.  This  ordinance  was  con- 
firmed by  Justinian  in  553.  Constantine  IV  granted  entire  free- 
dom in  papal  elections  by  removing  the  abuse  of  awaiting  the 
confirmation  of  emperors,  though  the  latter  still  continued  to 
interfere  during  the  following  centuries.  Nicholas  II  in  1059 
ordained  that  papal  elections  should  be  held  by  the  cardinal  bish- 
ops, who  should  seek  the  assent  of  the  Roman  clergy  to  their 
choice,  and  have  due  regard  for  the  rights  of  the  emperor.  In 
1178  Alexander  III  reserved  the  right  of  electing  a  pontiff  to  the 
entire  college  of  cardinals,  thereby  excluding  clergy,  people  and 
and  emperor.  This  discipline  is  still  in  force  and  will  receive  par- 
ticular attention  and  treatment  in  an  appendix  to  this  paper. 

We  have  space  for  but  a  brief  notice  of  the  much  mooted 
historical  question  concerning  the  pope's  power  to  nominate  his 
own  successor.  Many  hold  he  is  prohibited  from  doing  so  by 
divine  law.  The  principal  reasons  for  their  assertion  are  :  first, 
that  ecclesiastical  benefices  are  not  hereditary ;  secondly,  that 
if  the  pope  were  to  appoint  a  successor  he  would  be  exercising 
power  after  death,  something  forbidden  by  law  ;  thirdly,  con- 
trary decrees  of  Boniface  II,  Pius  IV  and  Paul  III. 

The  affirmative  opinion,  however,  seems  more  probable.  In 
the  first  place  nothing  on  this  point  has  ever  been  determined  by 
divine  law,  for  neither  in  Sacred  Scripture  nor  in  tradition  can 
we  find  the"least  reference  to  it.  And  if  Christ  had  prescribed  a 
mode  of  electing  the  Supreme  Pontiff,  it  would  not  have  been 
changed  during  the  various  periods  of  the  Church,  but  would  have 
remained  always  the  same.  To  the  authority  of  the  Church, 
therefore,  does  it  belong  to  establish  a  method  and  to  change  it 
according  to  the  exigencies  of  the  times.  This  authority  is  vested 
in  the  Roman  Pontiff,  to  whom  the  government  of  the  universal 
Church  has  been  committed.  No  canonists  nor  theologians  ques- 
tion this  right  of  the  Holy  Father.1 

1  Wernz  II,  p.  651. 


20  CANONICAL    ELECTIONS 

Furthermore,  in  case  of  real  and  extraordinary  necessity  or 
utility  to  the  Church,  the  pope  can,  according  to  the  more  prob- 
able opinion,  licitly  and  validly  designate — not  merely  recommend 
— his  successor.1  For  the  supreme  and  absolute  power  of  the 
pope  is  not  restricted  either  ex  natura  rei  or  by  any  special  divine 
law  to  mere  legislation  on  the  nomination  of  a  successor.  It 
seems,  therefore,  that  the  denial  of  the  pope's  right  to  extend  his 
power  to  the  immediate  nomination  of  a  successor  lacks  solid 
foundation. 

The  negative  arguments  at  the  most  prove  that  a  pope  cannot 
licitly  use  this  mode  of  provision  as  something  ordinary,  nor  val- 
idly impose  it  on  a  successor  as  an  ordinance  of  law.2  Sacred 
Scripture  and  divine  tradition  furnish  no  arguments  to  show  that 
any  restriction  has  been  placed  on  pontifical  authority  by  divine 
law.  Nowhere  did  Christ  by  an  explicit,  special  law  forbid  His 
vicar  on  earth  to  appoint  a  successor.  We  admit  that  benefices 
are  not  hereditary,  but  this  argument  has  no  force  here,  for  elec- 
tions exclude  heredity.  We  grant  that  a  Pope  cannot  exercise 
his  power  after  death,  but  to  elect  a  successor  is  to  complete  the 
act  during  life,  and  to  suspend  its  effect — which  is  permissible. 
Another  argument  in  our  favor  is  the  fact  that  in  1883  a  Bene- 
dictine abbot  found  in  the  library  of  the  chapter  of  Novara  a  doc- 
ument— which  every  one  admits  as  authentic — from  which  it  is 
clear  that  Felix  IV  (526-530)  designated  as  his  successor  Boni- 
face II  and  that  he  did  not  recall  this  designation  before  his  death. 
Boniface  II  himself  acted  in  a  like  manner,  even  though  he  after- 
wards revoked  his  appointment.  The  contention  that  the  nega- 
tive is  the  more  probable  opinion  is  based  on  a  false  supposition, 
for  no  common  opinion  exists,  and  there  are  many  learned  doc- 
tors such  as  Bonacina,  Decius,  Ledesma,  Mendoza,  Suarez,  Vas- 
quez,  Victoria,  Wernz  and  others  who  teach  the  affirmative.  The 
alleged  decrees  of  Boniface  II,  Pius  IV — which  was  never  pro- 
mulgated— and  Paul  III  are  opposed  by  that  of  Felix  IV ;  besides 
they  are  not  dogmatic  definitions  but  disciplinary  statutes.3 

'Hefele  II,  p.  627;    Hollweck,  t.  74,  p.  329. 

2  lb. 

3  Wernz,  lb. 


CHAPTER  II 
Juridical  Concept 

The  word  election  is  of  Latin  origin  (electio,  from  eligere, 
to  choose  from),  and  in  a  broad  sense  means  a  choice  among 
many  persons,  things,  or  sides  to  be  taken.  In  the  strict  juridical 
sense  it  signifies  the  choice  of  one  person  among  many  for  a  defi- 
nite charge  or  function.1  In  ecclesiastical  law  the  sacred  canons, 
speaking  of  election  in  its  broadest  sense,  include  also  collation 
or  mere  gratuitous  institution.  Election  thus  understood  is  the 
promotion  of  a  person  to  an  ecclesiastical  dignity  or  benefice,  and 
it  is  properly  called  election,  because  a  superior  in  conferring  a 
dignity  or  benefice  upon  a  person  chooses  him  in  preference  to 
others.  In  a  broad  sense  ecclesiastical  election  comprehends  not 
only  election  strictly  so-called,  but  also  nomination,  postulation, 
and  presentation. 

The  essence  of  election  in  its  broad  sense  is  made  manifest 
by  showing  how  it  differs  from  collation.  In  the  first  place  elec- 
tion essentially  differs  from  collation  in  this  that  collation  is  the 
act  of  a  superior  conferrng  an  ecclesiastical  office,  while  election 
is  an  act  of  subjects  naming  a  person  for  an  office.  Secondly,  col- 
lation confers  upon  the  nominee  the  office  itself  (jus  in  re),  and 
in  virtue  of  his  acceptance  he  immediately  becomes  absolute  mas- 
ter, even  before  he  has  taken  actual  possession ;  election  gives 
but  a  claim  to  the  office  (jus  ad  rem),  conferring  actual  posses- 
sion only  on  the  confirmation  or  institution  of  a  superior.2  Al- 
though by  election  the  elect  sometimes  acquires  the  benefice  or 
prelacy  immediately,  as  do  newly  elected  popes  and  generals  of 
Orders,  this  does  not  pertain  to  those  elections  because  they  are 
elections,  but  because  they  are  such  elections  as  are  confirmed  by 
common  law  as  soon  as  they  are  lawfully  concluded  and  the  elect 
consents  thereto.  For  as  soon  as  an  elect  consents  to  a  lawful 
election  in  which  he  was  elected,  v.  g.,  to  the  pontificate,  he 
thereby  from  divine  institution  becomes  the  vicar  of  Christ  and 
successor  of  Peter.  A  third  difference  is  that  the  appointee,  hav- 
ing once  consented,  is  no  longer  free  to  renounce  the  office  with- 
out the  consent  of  his  superior ;  on  the  other  hand  an  elect  may 
freely  renounce  it  at  any  time  before   confirmation  or  institu- 

1  Boudinhon,  Cath.  Encycl.  v.  Election. 

2  Rodriq.  lib.  2,  q  .51,  a.  1. 


22  CANONICAL    ELECTIONS 

tion.1  Thus  election  taken  in  this  way  may  be  defined  as  a  pro- 
vision whereby  subjects,  in  virtue  of  a  right  given  them  by  the 
Apostolic  See,  canonically  elect  a  certain  person  or  persons  to  a 
vacant  ecclesiastical  dignity  or  benefice,  which  either  the  one 
named  or  one  of  those  named  shall  receive  by  the  confirmation 
or  institution  of  a  superior.  In  this  definition  the  genus  is  pro- 
vision, for  provision  is  a  general  name  given  to  all  methods  of 
providing  for  vacant  offices.  The  essential  difference  between 
election  and  collation  is  also  clearly  shown,  for  collation  is  the 
act  of  a  superior,  election  of  inferiors  or  subjects. 

Thirdly,  election  is  taken  in  a  more  specific  and  proper  sense, 
as  distinguished  from  presentation.  Election  differs  from  pres- 
entation first  not  in  respect  to  the  person  elected  but  to  the 
electors.  It  implies  a  power  of  ecclesiastical  office,  which  a  lay- 
man cannot  exercise.  Although  this  power  is  neither  of  orders 
nor  of  jurisdiction,  but  of  office,2  it  is,  however,  the  act  of  an 
ecclesiastic,  which  act  is  reduced  to  the  power  of  jurisdiction, 
of  which  a  layman  is  wholly  incompetent.  Presentation  on  the 
contrary  is  merely  the  exercise  of  the  right  of  patronage  (jus 
patrona'tus),  which  may  be  conceded  to  the  laity.  Hence  electors 
to  ecclesiastical  offices  must  be  clerics,  whereas  patrons  may  be 
either  seculars  or  ecclesiastics.  The  right  of  the  candidate  either 
in  election  or  in  presentation  is  the  same  (jus  ad  rem). 

A  second  difference  between  election  and  presentation  is  that 
the  former  calls  for  canonical  approbation  or  confirmation,  while 
the  latter  leads  to  canonical  institution  by  a  competent  superior. 
Although  institution  in  a  broad  sense  is  the  same  as  collation,  in  a 
strict  sense,  it  is  different,  for  collation  is  a  free  donation,  whereas 
institution  is  a  necessary  appointment  of  the  candidate — if  fit  and 
worthy— presented  by  a  patron.  Canonists  distinguish  free  and 
necessary  collation;  the  first  is  collation  in  the  proper  sense  of 
the  word,  the  second  is  properly  called  institution.  By  free  col- 
lation the  collator  not  only  has  the  right  to  appoint  but  also  to 
designate  or  nominate  the  person  he  wishes  to  appoint.  In  neces- 
sary collation  the  appointment  belongs  to  one  person,  the  desig- 
nation or  nomination  to  another,  and  the  collator  must  of  neces- 
sity appoint  the  person  designated  or  presented  to  him  by  the 
patron  unless  canonical  obstacles  forbid  the  appointment.3 

Election  and  presentation  differ  thirdly  in  this  that  election 
is  vested  in  a  number  of  electors,  presentation  in  one  person  only 

1  Donatus,  in  prax.  par.  3,  tract.  1,  q.  1,  n.  8. 

:Azorius,  P.  II,  lib.  1,  c.  14,  q.  14. 

3  Smith,  Elements  of  Ec.  Law,  I,  p.  134. 


CANONICAL    ELECTIONS  23 

— physical  or  moral.  Election  pertains  to  the  members  of  a  col- 
lege, and  thus  understood  is  defined :  a  provision  by  which  in- 
ferior clerics,  in  virtue  of  papal  concession,  canonically  elect  a 
certain  person  or  persons  to  a  vacant  ecclesiastical  charge  or 
function,  the  one  named  or  one  from  those  named  obtaining  the 
office  by  the  confirmation  of  a  competent  superior.  Election 
taken  in  this  sense  agrees  with  collation  and  presentation  in  so 
far  as  it  is  a  canonical  provision.  It  differs  from  collation  be- 
cause it  pertains  to  inferiors,  while  collation  pertains  to  a  supe- 
rior ;  it  differs  from  presentation,  for  presentation  belongs  to 
one  person  only,  physical  or  moral,  and  leads  to  canonical  insti- 
tution, while  election  is  committed  to  a  number  of  clerics  and 
calls  for  confirmation. 

Finally  election  in  its  strict  and  most  proper  sense  is  distin- 
guished from  postulation  and  nomination.  Canonists  commonly 
define  election  thus  understood  as  the  canonical  choice  by  legiti- 
mate electors  of  a  fit  person  for  an  ecclesiastical  dignity  or  fra- 
ternal society.1  To  this  definition  some  think  should  be  added 
the  words :  by  the  confirmation  of  a  competent  superior.  Elec- 
tion taken  in  this  sense  differs  from  postulation  not  in  regard  to 
the  electors,  but  as  regards  the  person  elected,  for  postulation, 
as  we  shall  explain  below,  is  the  choice  of  a  person  juridically 
ineligible  by  reason  of  some  canonical  impediment  from  which 
the  superior  is  requested  to  dispense  him,  while  election  is  the 
appointment  of  a  fit  person.  It  is  distinguished  from  nomination 
in  this  that  the  latter  is  the  canonical  act  by  which  two  or  more 
fit  persons  are  proposed  to  the  free  choice  of  a  superior,  while  the 
former  is  the  designation  of  one  only. 

Baldus2  defines  election  differently  saying  that  it  is  prop- 
erly regulated  determination  of  the  will  of  a  competent  number 
to  a  person,  who  is  chosen  for  a  prelacy  or  rectorship.  This  def- 
inition would  be  clearer  and  more  accurate  if  it  said  that  election 
is  a  properly  regulated  determination  of  the  will  of  an  ecclesi- 
astical college  to  a  fit  person,  who  is  elected  to  a  prelacy,  rector- 
ship, or  ecclesiastical  benefice,  to  be  confirmed  by  a  competent 
superior.  Thus  there  is  explained  the  nature  of  election  both  in 
respect  to  the  elector  and  to  the  person  elected,  and  likewise  the 
form  of  election  both  natural,  which  consists  in  the  free  consent 
of  the  electors,  as  well  as  canonical,  which  is  determined  by  the 
sacred  canons,  and  there  is  also  shown  what  sort  of  a  right  is 

1  Hostiensis  Summa,  tit.  de  electione; 
Panormitanus,  Rubr.  de  postulat.  n.  2. 

2  de  elect,  c.  1,  n.  1. 


24  CANONICAL    ELECTIONS 

obtained  from  election,  namely  a  weak  and  unstable  right  needing 
the  strength  of  confirmation. 

Election  so  defined  is  distinguishable  into  many  species  both 
as  regards  the  electors  and  officers  or  benefices  which  are  pro- 
vided for  by  election.  Hence  diverse  methods  and  forms  of 
electing  have  been  established  according  to  the  condition  of  the 
different  offices  to  be  filled.  But  abstracting  from  this  diversity, 
that  election  is  one  essentially  and  specifically,  which  is  the  pro- 
vision of  inferior  clerics,  whereby,  in  virtue  of  a  right  conceded 
by  the  Holy  See,  they  name  a  definite  person  to  an  ecclesiastical 
benefice,  and  especially  to  a  dignity  or  prelacy,  thus  giving  to 
the  person  elected  a  claim  to  the  benefice  (jus  ad  rem),  which  will 
pass  into  his  possession  by  the  confirmation  of  his  superior,  if  the 
election  be  legitimately  conducted  according  to  canonical  form. 

Postulation  is  distinguished  into  simple  and  solemn  postula- 
tion.  Simple  postulation  is  a  petition  made  to  a  superior  to  per- 
mit one  of  his  subjects  to  be  elected  or  confirmed,  or  to  permit 
said  subject  to  consent  to  his  election  or  confirmation.  This 
method  of  postulation  is  employed  in  the  election  of  religious  to 
dignities  outside  their  Orders,  and  in  those  of  prelates  of  one 
church  or  diocese  to  an  office  or  benefice  in  another  church  or 
diocese.  This  species  of  postulation  has  no  force  except  when 
the  candidate  has  been  elected  or  solemnly  postulated,  for  solemn 
postulation  agrees  with  election  in  this  that  if  admitted  the  per- 
son thus  postulated  has  a  claim  to  the  prelacy. 

Solemn  postulation,  however,  is  not  election  taken  in  its 
proper  sense,  but  on  the  contrary  far  different  from  it.  Hostiensis 
and  Sylvius  define  postulation  as  a  petition  presented  to  a  com- 
petent ecclesiastical  superior,  that  he  may  provide  for  a  certain 
ecclesiastical  office  by  promoting  to  it  a  person  who  is  prevented 
from  being  elected  not  on  account  of  a  personal  fault  or  vice, 
but  on  account  of  some  canonical  impediment,  which  is  usually 
dispensable  and  which  does  not  render  him  strictly  ineligible. 
This  definition  differs  somewhat  from  that  of  Panormitanus1  who 
says  that  postulation  is  a  request  made  to  a  superior  to  promote 
a  certain  person  to  a  prelacy,  to  which  by  reason  of  some  defect 
or  impediment  he  could  not  have  been  elected  or  promoted  ac- 
cording to  common  law.  Some  canonists  hold  this  second  defini- 
tion, but  Sylvius  chooses  the  first  which  is  better,  because  it  ex- 
presses that  postulation  has  no  place  where  the  defect  or  im- 
pediment in  the  candidate  is  a  personal  vice  ;  this  is  not  expressed 
in  the  second,  which,  unless  it  be  reduced  to  the  sense  of  the 

1  Rubr.  de  post. 


CANONICAL    ELECTIONS  25 

first,  is  incomplete  and  false,  for  according  to  this  definition  even 
one  laboring  under  a  personal  defect  could  be  elected,  which  is 
not  true.  Baldus1  defines  postulation  in  still  another  way  as  a 
canonical  act  by  which  a  favor  is  requested  of  a  competent 
superior  that  he  may  provide  a  prelate  or  give  the  chapter  per- 
mission to  elect  one.  But  this  definition  is  very  general,  and  could 
be  applied  also  to  simple  postulation. 

From  these  definitions  may  be  gleaned  many  essential  dif- 
ferences between  election  and  postulation.  Election  presupposes 
no  canonical  defect  or  impediment  in  the  person  to  be  elected, 
whereas  postulation  properly  pertains  to  one  who  by  reason  of  a 
defect  which  is  not  personal  cannot  be  elected.  If  a  person  is 
canonically  eligible  for  election,  he  cannot  be  postulated,  for 
electors  should  choose  for  a  benefice  not  only  the  one  best  fitted 
but  also  by  the  most  suitable  method.  But  election  is  a  better 
mode  of  provision  than  postulation,  hence  an  eligible  person 
should  be  elected  and  not  postulated,  except  in  case  of  two  candi- 
dates when  one  is  elected  and  the  other  postulated.  For  two 
cannot  be  elected  at  the  same  time,  but  the  law  permits  that  in 
the  election  of  one  another  may  be  postulated,  even  though  the 
latter  otherwise  eligible  is  at  present  ineligible,  for  the  reason 
that  one  has  already  been  elected,  and  two  cannot  be  elected  at 
the  same  time.  If,  on  the  contrary,  a  person  laboring  under  a 
canonical  impediment  should  be  elected,  the  election  is  always 
annulled,  for  such  candidates  must  be  chosen  by  postulation. 

A  second  difference  between  election  and  postulation  is  that 
the  former  is  a  matter  of  justice,  the  latter  of  favor.  Election 
confers  a  right  (jus  ad  rem)  on  the  elect,  and  there  moreover 
arises  between  him  and  the  benefice  for  which  he  has  been  chosen 
a  bond  of  spiritual  wedlock.  Both  the  electors,  therefore,  and  the 
person  elected  have  a  right  that  the  election  be  confirmed.  Hence 
the  elect  in  requesting  confirmation  does  not  ask  a  favor,  but 
merely  seeks  justice,  and  to  use  the  words  of  John  Andreas: 
"when  the  elect  is  fit  and  worthy,  he  can  proudly  appear  before 
the  superior,  not  even  raising  his  head  or  biretta,  for  election  is 
a  question  of  justice,  and  not  of  favor,  as  is  postulation." 

From  this  second  difference  arises  another,  namely  that 
postulation  can  be  recalled  by  the  postulators  before  it  has  been 
presented  to  the  superior  ;  the  messenger  sent  to  the  superior  can 
likewise  be  recalled,  provided  that  the  revocation  reach  him  be- 
fore he  has  presented  himself  before  the  superior.  Furthermore, 
even  if  the  postulation  has  been  presented  to  the  superior,  it  can 

1  Rubr.  de  post.  n.  1. 


26  CANONICAL    ELECTIONS 

still  be  recalled  with  his  consent.  But  election  cannot  be  revoked, 
for  by  virtue  of  election  the  person  elected  acquires  a  right  (jus 
ad  rem)  to  the  charge  or  function  for  which  he  has  been  chosen, 
while  in  postulation  the  one  postulated  acquires  no  right  what- 
soever. Some  object  to  this  last  statement,  saying  that  postula- 
tion made  for  the  utility  and  concord  of  the  Church  cannot  be 
rejected.1  Sylvius  responds  that  where  postulation  is  not  made 
for  reasons  of  concord,  no  right  is  acquired,  not  even  by  the  pos- 
tulators  ;  but  where  postulation  is  made  by  two-thirds  of  the 
voters,  those  postulating  acquire  a  right,  and  in  this  sense  can- 
onists must  be  understood  who  say  that  postulation  made  for 
the  concord  and  advantage  of  the  Church  should  be  admitted. 
The  person  postulated,  however,  never  acquires  any  right,  since 
he  has  a  canonical  defect  or  impediment  which  renders  him  in- 
eligible until  he  is  dispensed  therefrom.  We  shall  return  to  this 
question  again  when  treating  of  postulation  in  particular,  where 
the  many  other  differences  between  election  and  postulation  will 
be  explained. 

Solemn  and  juridical  nomination  is  also  a  way  of  providing 
for  vacant  churches.  According  to  Hostiensis  it  is  the  canonical 
act  by  which  the  electors  propose  two  or  more  worthy  persons 
to  the  free  choice  of  the  superior,  in  order  that  he  may  appoint 
one  of  them  to  the  vacant  office. 

There  are  three  species  of  nomination.  The  first,  consulta- 
tive or  simple  nomination,  is  a  voting  previous  to  an  election  in 
which  are  proposed  the  names  of  several  fit  and  worthy  persons, 
one  of  whom  may  be  elected  later  by  the  chapter.  The  second 
is  intrinsic  to  election  by  secret  ballot,  and  obtains  when  each 
of  the  electors  names  him  whom  he  wishes  to  be  elected ;  the 
one  thus  nominated  has  no  right  whatever  before  the  announce- 
ment of  the  ballot  of  nomination,  but  once  the  ballot  has  been 
made  known  he  acquires  a  certain  right  and  the  electors  are  no 
longer  free  to  change  their  opinion.  The  third  is  solemn  nomina- 
tion, which  is  that  defined  above.  The  role  of  electors  is  the 
same  as  in  election  properly  so-called.2  It  differs  from  election 
inasmuch  as  it  does  not  confer  on  those  named  a  real  right  to  the 
benefice,  but,  on  the  contrary,  the  nominators  may  recall  the 
nomination  at  any  time  before  it  is  presented  to  the  superior. 
For  just  as  election  can  fall  only  on  one  person,  so  nomination 
cannot  confer  on  several  a  real  right  to  the  benefice  ;  on  the  con- 
trary, their  right  is  real  inasmuch  as  it  excludes  third  parties, 

1  Hostiensis,  de  elect.,  cap.  Cum  ad  Monast. 

2  Boudinhon,  lb. 


CANONICAL    ELECTIONS  27 

though  none  of  them  possesses  the  jus  ad  rem.1  It  is  distin- 
guished from  postulation  in  this  that  it  occupies  itself  with  a 
number  of  persons,  whereas  in  postulation  one  only  is  designated. 
Moreover,  nomination  does  not,  like  postulation,  concern  itself 
with  those  who  have  canonical  impediments,  but  with  those  who 
are  strictly  eligible.  Hence  there  is  no  question  of  those  named 
being  dispensed  from  an  impediment  through  the  favor  of  a  supe- 
rior, but  it  is  a  matter  of  justice  for  the  superior  to  confirm  one 
of  those  named,  if  he  be  fit  and  worthy. 

There  are,  therefore,  three  modes  of  provision  for  vacant 
benefices — election,  postulation,  and  nomination — distinct  from 
that  general  mode  which  consists  in  the  collation  of  a  superior, 
and  also  from  another  mode  which  is  the  presentation  and  insti- 
tution of  the  one  presented.  These  three  agree  in  this  that  they 
are  acts  of  an  ecclesiastical  college,  and  in  them  is  usually  ob- 
served the  general  form  of  electing  by  ballot ;  they  do  not  give 
actual  possession  or  dominion,  but  at  the  most  election  gives  a 
claim  to  the  benefice  in  the  manner  explained  above.  They  are 
comprehended  under  election,  as  distinguished  from  collation  and 
institution,  but  are  of  different  species.  Thus  election  may  be 
considered  either  generically  or  specifically ;  considered  gener- 
ically  postulation  and  nomination  are  species  of  election,  but  con- 
sidered specifically  they  are  species  distinct  from  it. 

In  addition  to  these  ways  of  providing  for  vacant  churches 
or  benefices,  Barbosa2  adds  two  others:  simple  petition  and 
translation.  Simple  petition,  since  it  has  no  foundation  in  law, 
is  not  an  ecclesiastical  provision,  but  merely  a  simple  supplication 
by  which  the  clergy  or  people  beg  the  Holy  See  to  grant  them  the 
prelate  they  desire.  Neither  does  translation  bespeak  a  special 
way  of  providing  for  a  widowed  church,  unless  accidentally  and 
in  respect  to  the  term  a  quo.  For  it  is  purely  accidental  to  the 
church,  that  its  prelate  was  previously  a  bishop  or  a  prelate  of 
some  other  church  ;  the  church  itself  is  not  provided  for  except 
by  institution,  election,  or  postulation.  Boudinhon  includes  still 
another  method  under  election,  namely  recommendation,  which 
is  the  designation  of  one  or  several  fit  persons  made  to  the  supe- 
rior by  certain  members  of  the  clergy,  chiefly  in  view  of  sees  to 
be  filled.  Those  recommending  do  not  act  as  electors,  hence  the 
persons  designated  acquire  no  real  right,  the  Holy  See  remaining 
perfectly  free  to  make  a  choice  outside  of  the  list  proposed. 
Hence  there  are  but  two  general  ways  of  providing  for  widowed 

'lb. 

"  De  jure  eccles.  I,  c.  19,  n.  2. 


28  CANONICAL    ELECTIONS 

churches :  by  collation  and  election  generically  taken,  which  is 
divided  into  election  strictly  so-called,  postulation,  and  nomina- 
tion. Presentation  is  also  included  under  election  in  a  general 
way,  as  we  have  explained  above. 

Having  explained  the  different  ways  in  which  election  may 
be  taken,  it  now  remains  to  treat  of  the  species  of  election  strictly 
so-called.  The  Decretals1  admit  three  forms  or  modes  of  elect- 
ing prelates :  the  ordinary  way  by  ballot,  and  two  exceptional 
ways,  namely,  compromise  and  quasi-inspiration,  often  called 
common  inspiration.  The  Council  of  Trent2  abrogated  the  forms 
by  compromise  and  quasi-inspiration  in  the  elections  of  regulars, 
but  they  still  find  place  in  other  canonical  elections,  as  is  clear 
from  the  constitution  of  Pius  X,  "Vacante  Sede  Apostolica,"  in 
which  this  threefold  form  is  expressly  mentioned. 

Some  ask  whether,  notwithstanding  the  Tridentine  restric- 
tion, regulars  can  elect  by  compromise  united  with  scrutiny.  We 
think  that  since  this  form  of  compromise  is  not  distinguished 
from  election  by  ballot,  or  at  least  obtains  the  end  of  secret  scru- 
tiny, which  is  to  exclude  coercion  and  violation  of  liberty,  it  can 
reasonably  be  said  that  this  form  was  not  abrogated  by  the  Coun- 
cil, for  in  it  is  strictly  observed  the  law  of  secret  ballot,  as  we 
shall  show  at  length  on  a  later  page. 

It  has  been  said  that  election  by  inspiration,  because  it  comes 
from  the  Holy  Ghost,  is  not  subject  to  human  law.  Sigismund" 
distinguishes  inspiration  from  quasi-inspiration.  The  former 
occurs  when  the  electors,  observing  no  order  and  quasi-intoxi- 
cated, spontaneously  name  a  person  and  acclaim  him  elected,  as 
happened  in  the  elections  of  the  saintly  bishops,  Martin  and  Am- 
brose ;  the  latter  is  when  all  the  electors  suddenly,  quickly,  but 
orderly — that  is,  one  after  another  elect  the  same  persons.  Hav- 
ing given  this  distinction,  he  says  that  inspiration  is  not  a  form 
of  election.  But  inspiration  is  from  the  Holy  Ghost,  so  when 
evident,  election  by  inspiration  will  be  confirmed.  Hence  it  is 
not  subject  to  the  law  or  form  prescribed  in  the  chapter  "Quia 
propter." 

The  above  remarks  are  true  only  where  election  by  inspira- 
tion or  quasi-inspiration  has  not  been  abrogated  by  the  Council 
of  Trent,  they  have  no  reference  to  the  elections  of  regulars, 
where  elections  not  conducted  by  secret  ballot  are  invalid.  Al- 
though what  proceeds  from  the  Holy  Ghost  is   subject  to   no 

1  cap.  Quia  propter,  Lateran  Council,  1215,  A.  D. 

2  Sess.  25,  de  Regular,  c.  6. 

3  dub.  2. 


CANONICAL    ELECTIONS  29 

human  law,  this  is  true  only  where  it  is  manifest  beyond  question 
that  the  Holy  Ghost  wills  something.  We  cannot  say,  however, 
that  inspiration  from  the  Holy  Ghost  directs  an  election  from 
the  sole  fact  that  it  is  brought  about  by  the  spontaneous  and 
unanimous  acclamations  of  the  electors.  Thus  the  Church  will 
not  ratify  such  an  election,  knowing  full  well  that  if  it  is  prompted 
by  the  Holy  Ghost,  the  electors  will  confirm  it  by  secret  vote,  the 
same  Holy  Spirit  interiorly  moving  and  inspiring  them  to  do  so. 

We  can  also  deduce  that  the  method  of  nomination  was  like- 
wise excluded  in  the  elections  of  regulars,  since  nomination  is  a 
certain  species  of  compromise.  Nomination,  however,  by  way  of 
compromise  united  to  scrutiny  would  be  valid,  for  the  electors 
can  nominate  certain  ones  by  secret  votes,  and  compromise  with 
the  superior  to  grant  them  the  candidate  of  his  choice.1  But  if 
this  nomination  be  referred  to  the  superior  orally  and  not  by 
secret  ballot,  it  is  worthless  and  can  be  recalled  even  after  it  has 
been  presented  to  the  superior.  It  would  be  valid  by  reason  of 
devolution,  if  meanwhile  the  electors  were  to  elect  no  one  else 
within  the  allotted  time.  It  would  also  be  valid  by  way  of  cession, 
for  to  surrender  one's  right  is  not  to  elect ;  and  the  electors  could 
unanimously  give  up  their  right  on  the  condition  that  the  supe- 
rior choose  one  of  those  named.2 

The  Council  not  only  decreed  all  elections  of  regulars  other 
than  by  secret  ballot  null  and  void,  but  it  also  ordained  that  any 
person  who  would  allow  himself  to  be  created  provincial,  abbot, 
or  prior  in  such  a  way,  is  deprived  forever  of  passive  voice  in 
religion.  The  censure  is  not  expressly  inflicted  upon  generals, 
and  since  it  is  a  question  of  penalty,  the  election  of  a  general  by 
public  voting  is  indeed  ipso  facto  invalid,  but  the  general-elect 
does  not  incur  the  censure.  One  is  said  to  give  permission  to 
one's  election  to  a  prelacy,  who  consents  either  antecedently  or 
subsequently  thereto. 

In  a  word  the  only  point  insisted  upon  by  the  Council  of 
Trent  was  that  the  elections  of  regulars  should  be  by  secret 
scrutiny,  in  such  a  way,  that  the  votes  of  the  electors  would 
never  become  known. 

In  the  Order  of  Friars  Preachers  there  can  be  no  question 
of  election  by  compromise  or  by  common  inspiration.  The  early 
Constitutions3  approve  of  the  triple  form  contained  in  the  chap- 
ter "Quia  propter."    But  the  Roman  edition  says :    "We  declare 

1  Passerini,  De  electione  canonica,  c.  I,  n.  64. 

2  lb. 

3  dist.  2,  cap.  2,  text.  1     . 


30  CANONICAL    ELECTIONS 

this  ancient  form  of  election  has  already  been  abolished  by  the 
Council  of  Trent,  and  in  every  canonical  election  of  our  Order 
the  decree  of  the  Sacred  Council  must  be  observed."1  And  im- 
mediately after  this  text  is  inserted  an  excerpt  from  the  Chapter 
of  Bologna,  1564:  "Regarding  the  execution  of  the  Tridentine 
decree,  we  command  all  our  brothers  that  in  future  elections  the 
form  here  given  must  be  observed.  Let  each  of  the  electors  write 
the  name  of  a  candidate  on  a  schedule  or  have  it  written,  but  the 
elector's  name  shall  never  be  written,  and  it  shall  not  be  revealed 
either  to  the  scrutineers  or  to  the  one  confirming.  Election  by 
common  inspiration  and  compromise  having  therefore  been  abol- 
ished, election  by  scrutiny  must  always  be  observed."  From  this, 
then,  it  is  clear  that  in  the  Order  of  Friars  Preachers  there  can 
be  no  canonical  election  except  by  scrutiny,  and  in  order  that  for 
the  future  the  form  of  electing  prelates  in  the  Order  would  be 
firm,  stable  and  certain,  the  capitulars  of  Bologna  not  only  or- 
dained that  every  canonical  election  should  be  by  scrutiny,  but 
they  even  decreed  the  form  of  such  elections. 

1  d.  ii,  c.  ii. 


CHAPTER  III 

Qualifications  of  Electors 

The  end  of  canonical  election  is  to  provide  fit  and  worthy 
prelates  or  superiors  for  ecclesiastical  colleges.  Hence  bishops, 
generals,  abbots,  provincials,  local  prelates,  dignitaries  of  cathe- 
drals, canons  and  the  like  are  canonically  elected,  so  that  worthy 
and  competent  prelates  or  ministers  may  be  provided  for  various 
ecclesiastical  charges  or  functions.  From  this  final  cause,  which 
is  the  first  cause,  follows  the  efficient  cause.  And  since  election 
is  an  act,  its  efficient  cause  are  agents  or  electors,  who  to  elect 
validly,  must  be  possessed  of  certain  qualities,  determined  either 
by  common  law,  or  by  particular  statutes  of  the  different 
churches  or  institutes.  In  the  present  chapter,  we  shall  occupy 
ourselves  especially  with  an  exposition  of  those  qualities  or  con- 
ditions, which  electors  must  necessarily  have  in  order  lawfully 
and  validly  to  take  active  part  in  canonical  elections. 

Elections  belong  strictly  speaking  to  the  college  or  com- 
munity for  which  a  prelate  is  to  be  elected.1  This  ordinance  of 
common  law  has  been  adopted  by  the  greater  number  of  religious 
orders,  in  which,  according  to  the  statutes  of  the  respective  or- 
ders, either  all  the  prelates — even  local — are  elected  by  the  par- 
ticular convents,  as  in  the  Order  of  Friars  Preachers  ;  or  pro- 
vincials by  provincial  chapters ;  or  generals  by  a  general  congre- 
gation, as  in  the  Society  of  Jesus.  Either,  therefore,  prelates  are 
not  elected,  but  instituted  by  supreme  authority,  as  for  instance, 
the  pope  very  frequently  institutes  bishops,  or  if  elected,  they 
are  elected  by  those  colleges  over  which  thy  are  chosen  to  pre- 
side, unless  custom,  privilege,  or  the  will  of  higher  authority 
dispose  otherwise. 

Some  canonists  hold  that  at  least  three  persons  are  required 
to  constitute  a  college.2  Others,  on  the  contrary,  say  that  two 
suffice.3  The  latter  seems  to  be  the  more  probable  opinion,  for 
in  the  chapter  "Nullus"4  we  read:  "Let  no  presbyter  be  elected 
in  a  church  whose  congregation  numbers  two  or  three,  except 


1  Cap.  Congregatio  43.  q.  7. 

2  Sylvius,  Cap.  1  de  electione;    Castell,  de  elect,  c.  5,  n.  43;    Donatus, 
tract.  4,  q.  6,  n.  3. 

3Innoc.  Cap.  dilecto ;    Jo.  And.  c.  statutum;    Rodriq.  II,  q.  53,  a.  III. 
Barbosa,  c.  1.  de  elect,  n.  3. 
4 1,  de  elect. 


32  CANONICAL    ELECTIONS 

by  canonical  election  of  the  same  two  or  three."  In  particular 
law  the  statutes  of  each  order  must  be  observed. 

In  the  Order  of  Friars  Preachers  no  convent  can  elect  a  prior, 
unless  it  has  three  vocals  (Rome,  1601).  Donatus1  adds  that  a 
general  chapter  cannot  by  its  own  authority  establish  contrary 
legislation.  The  ordination  of  the  Chapter  of  Valencia  (1596) 
which  required  that  these  vocals  must  have  completed  twelve 
years  from  profession,  was  replaced  by  one  of  the  Chapter  of 
Rome  (1608)  which  reduced  the  requirement  to  six  years.  The 
ancient  discipline  of  the  Chapter  of  Valencia  was  restored  by  the 
Chapter  of  Louvain  (1885),  but  again  modified  by  the  Chapter  of 
Avila  (1895),  which  decreed  that  every  priest  has  active  voice  in 
all  canonical  elections,  provided  he  shall  have  completed  nine  full 
years  from  his  first  profession,  and  have  satisfied  the  other  con- 
ditions required  by  law. 

Camillus  notes  that  where  there  are  but  three  electors,  they 
cannot  validly  elect  one  of  their  own  number,  because  the  one 
elected  must  have  a  majority  of  two  votes,  and  this  majority  no 
one  of  the  three  can  obtain  unless  he  elect  himself,  which  is  not 
permitted  and  would  render  the  election  null. 

Although  at  least  two  are  required  to  constitute  a  college, 
still  the  rights  of  an  established  college  can  continue  in  one  alone. 
If,  for  example,  all  the  members  of  a  college,  one  alone  excepted, 
should  die,  be  excommunicated,  or  in  some  other  way  rendered 
disqualified  to  elect,  the  one  remaining  could  lawfully  and  validly 
carry  on  an  election,  provided  that  he  would  not  elect  himself.2 
Hence  if  one  or  two  of  a  college  of  three  vocals  renounce  their 
right,  such  renunciation  can  in  no  way  prevent  the  one  left  from 
voting,  should  he  wish  to  do  so.  This  discipline  was  approved 
by  a  response  of  the  Sacred  Congregation  of  Bishops  and  Regu- 
lars, August  21,  1690,  which  pronounced  valid  and  confirmed  an 
election  held  in  a  convent  of  Ripano,  that  had  been  vetoed  by  the 
provincial  because,  one  of  three  vocals  renouncing  his  voice,  the 
other  two  had  conducted  an  election. 

Having  shown  that  a  college  of  at  least  two  or  three  mem- 
bers is  necessary  to  hold  a  lawful  and  valid  election,  we  shall  now 
consider  the  qualifications  or  conditions  required  of  vocals  for 
the  exercise  of  their  right  to  vote. 

1.  Natural  law  requires  that  an  elector  be  in  actual  posses- 
sion of  the  full  use  of  reason.  Hence  natural  law  excludes  those 
who  have  not  reached  the  age  of  puberty,  the  demented,  those  in 

*n.  5. 

2  Sylvius,  electio  I.  n.  2;   Hostiensis,  c.  2  de  post. 


CANONICAL    ELECTIONS  33 

a  state  of  perfect  intoxication,  those  in  such  a  state  of  anger  as 
to  render  full  deliberation  impossible.  The  demented  or  insane 
may  validly  elect  during  a  lucid  interval,  but  lucid  intervals  must 
not  be  presumed,  for  once  insanity  has  taken  possession  of  a  per- 
son, it  is  considered  to  be  present  always,  unless  the  contrary  be 
proved.  And  if  drunkenness  or  anger  does  not  destroy  the  free 
use  of  reason,  neither  will  either  of  these  vices  ipso  facto  irritate 
an  election.  Just  as  for  contracts  or  promises,  so  also  for  canon- 
ical elections,  that  deliberation  is  necessary,  which  is  required 
to  constitute  a  mortal  sin.1 

The  infirm,  aged,  blind,  deaf,  and  the  like  are  not  unqualified 
for  the  exercise  of  active  voice,  since  they  can  freely  deliberate 
on  the  one  to  be  elected.  The  blind,  however,  are  counselled  to 
renounce  their  right,  and  Sigismund  extends  this  counsel  to  the 
deaf,  so  that  they  may  act  with  a  safer  conscience. 

II.  Electors  must  be  ecclesiastics,  that  is,  clerics  or  relig- 
ious, and  not  laymen.  In  elections  of  ecclesiastical  prelates,  the 
vote  of  a  lay  person  is  not  only  null,  but  it  invalidates  such  elec- 
tions. Although  a  layman  may  exercise  suffrage  in  canonical 
elections  by  special  papal  privilege,  they  can  never  acquire  it  by 
custom.2  Laymen  may  also  be  admitted,  not  to  take  active  part, 
but  to  defend  and  protect  the  electors,  or  to  see  that  the  form 
is  observed. 

III.  Only  those  who  compose  the  college  or  community  to 
be  provided  can  be  electors,  for  since  election  belongs  per  se 
primo  to  a  college,  it  follows  that  they  alone  can  elect,  who  are 
assigned  to  the  college. 

In  the  elections  of  regulars  only  those  professed  enjoy  active 
voice,  the  others,  not  yet  incorporated  into  religion,  are  not 
strictly  speaking  religious.  Tacit  profession  is  sufficient,  for  he 
who  is  tacitly  professed,  is  lawfully  professed,  and  is  a  member 
of  religion  provided  it  is  evident  he  has  completed  a  year  of  pro- 
bation according  to  the  Council  of  Trent.3  Religious  can  elect 
prelates  for  those  institutes  only  in  which  they  were  professed. 
If  a  religious  pass  to  another  order  he  cannot  take  part  in  its 
elections  before  his  profession,  and  according  to  some  he  does 
not  acquire  active  voice  even  after  his  profession.4  It  is  further- 
more required  that  the  elector  belong  to  that  body  in  the  con- 

1  Antoninus,  Cajetan,  Sylvius. 

=  D.  Antoninus,  I.  tit.  16,  c.  11;  Hostiensis,  de  elect,  n.  5;  Donatus, 
3,  tract.  4,  q.  4. 

''Layman,  IV,  tract.  2,  c.  12,  n.  3;    Lezana,  v.  electio,  n.  2. 
4  electionibus,  ex  Clem.;    Castell.  c.  5,  n.  58. 


34  CANONICAL    ELECTIONS 

vent  or  monastery,  in  the  general  or  provincial  chapter,  in  the 
congregation  or  college  whose  office  it  is  here  and  now  to  elect. 
Wherefore  chaplains  or  perpetual  beneficiaries  of  a  cathedral, 
who  are  not  members  of  the  chapter,  are  not  admitted  to  canon- 
ical elections.  Lastly,  to  be  a  legitimate  elector,  a  religious  must 
have  become  so  in  accordance  with  the  particular  statutes  of  his 
order  or  institute. 

Thus  in  the  Order  of  Friars  Preachers,  to  be  an  elector  for  a 
conventual  prior,  or  for  his  companion  to  a  provincial  chapter, 
one  must  have  been  assigned  to  the  convent  in  which  the  election 
is  to  take  place  two  months  before  date  of  said  election.  There 
are,  however,  some  exceptions  to  this  doctrine,  which  will  be 
given  below. 

From  what  has  been  said  it  follows  that  the  religious  of  one 
convent  cannot  take  part  in  the  elections  of  another,  and  that  a 
prior  or  local  prelate  of  one  convent  cannot  vote  for  a  prior  or 
prelate  in  another  except  by  special  privilege.  In  accordance 
with  this  statute  of  common  law  the  Constitutions  of  the  Order 
of  Friars  Preachers  decree  that  a  vocal  or  prior  of  one  convent 
has  no  voice  in  the  elections  of  another,  unless  he  shall  have  been 
sent  to  the  other  as  vicar  of  the  election.1  And  since  generals 
and  provincials  belong  to  no  convent  in  particular,  they  also  have 
no  voice  in  the  elections  of  conventual  prelates,  although  accord- 
ing to  the  particular  statutes  of  some  orders  they  may  institute 
said  prelates.  The  general  and  provincials  of  the  Order  of  Friars 
Preachers  do  not  enjoy  suffrage  in  conventual  elections,  but  it 
pertains  to  them  to  confirm  these  elections,  and  in  case  of  devo- 
lution to  institute  local  prelates. 

The  vocals  cannot  of  themselves  admit  an  outsider  to  take 
part  in  an  election,  because  a  college  has  no  power  of  conceding 
suffrage  to  any  one,  who  does  not  already  possess  the  faculty  by 
papal  concession.2  This  doctrine  is  not  admitted  by  all,  though 
the  majority  of  canonists  agree  in  this  that  the  right  of  exercis- 
ing active  voice  may  be  prescribed  by  custom.  And  since  such 
a  custom  is  contrary  to  common  law,  a  prescription  of  forty  years 
is  required  to  establish  it.  Moreover,  to  prescribe  a  custom 
against  common  law,  a  colored  title  at  least  is  also  required.  To 
prove  this  custom  it  is  not  required  that  the  right  of  voting  has 
been  exercised  many  times  during  the  forty  years,  for  one  act 
alone  suffices  when  the  one  elected  possesses  the  benefice   for 

1  Passerini,  De  elect,  can.,  c.  10,  n.  16. 

2  lb.  n.  17. 


CANONICAL    ELECTIONS 


35 


forty  years.1  An  outsider,  having  once  prescribed  the  right  of 
suffrage,  may  not  be  ejected  from  an  election,  but  should  be  sum- 
moned. But  if  it  chance  that  his  vote  is  not  numbered  with  the 
others,  the  election  is  not  vitiated. 

IV.  The  fourth  condition  requires  electors  to  be  present  in 
the  particular  place  in  which  the  college  is  congregated  to  hold 
the  election.  For  since  election  belongs  per  se  to  the  college,  no 
elector  can  take  part  in  it  unless  he  is  collegiately  present,  where 
the  college  is  to  hold  the  election. 

Common  law  forbids  absent  capitulars  to  send  their  votes  in 
writing.  Some  canonists,  however,  assert  that  contrary.2  Others 
say  that  a  vote  sent  by  sealed  letter  is  not  against  the  substance 
of  the  law,  and  base  their  opinion  on  this  that  in  the  Congrega- 
tion of  Saint  John  the  Baptist  in  Portugal  every  religious  sends 
by  letter  his  vote  for  the  election  of  a  general.  But  these  con- 
trary opinions  cannot  be  admitted,  for  the  true  doctrine  is  clearly 
expressed  in  the  chapter  "Si  quis  justo"  :3  "An  absent  capitular 
cannot  send  his  vote  by  letter,  because  votes  must  not  be  ex- 
pressed previous  to  the  scrutiny,  but  cast  secretly  and  separately 
in  the  scrutiny  itself."  The  mode  of  election  practiced  in  the  above 
named  Portuguese  Congregation  adds  no  strength  to  the  con- 
trary opinion,  for  this  was  done  according  to  a  particular  statute 
confirmed  by  papal  authority.  Custom  legitimately  prescribed 
could  also  permit  suffrage  in  writing.4  But  aside  from  privilege 
or  custom,  absent  capitulars  cannot  send  their  votes  in  writing, 
even  with  the  consent  of  the  chapter.5 

The  infirm,  who  are  confined  in  the  convent  of  election,  have 
the  right  to  vote,  and  the  scrutineers  should  go  to  them,  and 
receive  their  votes  according  to  canonical  form.  Sigismund  con- 
tends the  same  holds  for  those  who  are  at  a  distance  from  the 
cloister,  in  the  city  for  example.  But  others  think  that  such 
electors  should  send  a  procurator.6  We  prefer  the  latter  opinion, 
for  it  seems  unreasonable  that — the  electors  assembled  and  all 
things  in  readiness — the  scrutineers  should  be  held  to  go  to  the 
city  to  receive  the  vote  of  an  infirm  elector.  But  in  such  cases 
custom  and  the  particular  laws  of  each  college  must  be  observed. 

In  the  Order  of  Friars  Preachers  all  who  are  not  present  in 
the  convent  of  election  are  considered  to  be  absent.7    Hence  the 

1  Rota,  decis.  548,  n.  6,  par.  5. 

2Azorius,  L.  13,  c.  10,  p.  2.;    Reiff.  L.  1,  t.  VI,  n.  106. 
3De   electione  in  VI. 
4  cap.  fin.  de  consuetudine. 

5Sigis.  dub.  13,  n.  1;  Castell.  c.  5,  n.  65;  Barbosa,  n.  17;  Donatus 
tract.  4,  q.  17. 

"Boerius,  Castell,  Mandag,  Sylvius. 
TConsti.  n.  546. 


36  CANONICAL    ELECTIONS 

scrutineers  are  held  to  go  only  to  those  infirm  who  are  confined 
in  the  convent  of  election.  Some  extend  this  to  all  electors  who 
though  present  in  the  convent  of  election,  are  nevertheless 
through  a  just  and  lawful  reason  unable  to  be  present  in  the 
election  chamber.1  Wherefore  in  this  Order  only  those  electors 
enjoy  the  right  of  active  voice  who  are  personally  present  in  the 
convent  of  election. 

Electors  legitimately  absent  do  not,  however,  want  for  a 
means  of  casting  their  votes,  for  common  law  permits  them  to 
be  present  by  proxy.  The  chapter  "Quia  propter"  lays  .down  four 
conditions  on  this  point :  1°  the  absentee  himself  must  constitute 
the  procurator  ;  2°  he  must  be  legitimately  detained  ;  3°  he  must 
confirm  his  reason  by  oath,  if  the  college  so  desire  ;  4°  the  proc- 
urator must  be  a  member  of  the  electoral  college.  The  chapter 
"Si  quis  justo"  adds  three  conditions  more  to  those  already  given: 
1°  the  absent  elector  may  institute  several  procurators,  provided 
that  he  institute  them  in  solidum ;  2°  the  procurator  must  cast 
the  two  votes  for  the  same  candidate,  unless  the  mandate  was 
given  for  a  certain  person — in  which  case  he  may  cast  his  own 
vote  for  the  candidate  of  his  choice  ;  3°  if  no  one  from  the  college 
will  accept  the  procuration,  he  cannot  send  an  outsider  without 
the  consent  of  the  chapter,  nor  can  he  on  this  account  send  his 
vote  in  writing. 

A  few  things  are  to  be  noted  concerning  these  conditions. 
He  is  considered  absent,  who  is  so  distant  from  the  place  of  elec- 
tion, that  the  scrutineers  are  not  held — according  to  their  re- 
spective statutes  or  customs — to  go  to  him  personally  to  receive 
his  vote.  Procurators  can  be  sent  by  those  absentees  only,  who 
are  detained  in  a  place  to  which  a  procurator  can  be  conveniently 
summoned.  A  vocal  remaining  in  a  place  to  which  a  procurator 
cannot  be  conveniently  summoned,  loses  the  right  of  active 
voice,  and  need  not  be  advised  of  an  approaching  election.2  But 
he  always  has  the  right — even  though  the  summons  to  election 
has  already  been  given — of  acceding  to  a  place,  whence  he  may 
elect  or  summon  a  procurator.  Impediments  constituting  legiti- 
mate detention  from  the  place  of  election  would  be  grave  illness, 
deadly  enmities,  imprisonment,  citation  to  a  higher  tribunal,  and 
the  like.  Moreover,  the  impediment  must  be  such,  that  even  at 
the  time  of  election  it  would  prevent  his  personal  appearance. 
If  a  procurator  is  admitted  without  an  oath,  the  chapter  thereby 


1  Tabien.,  Castell. 

2  Passerini,  lb.  c.  10,  n.  38. 


CANONICAL    ELECTIONS  37 

renounces  its  right  to  make  exception  to  the  reason  of  the  vocal's 
absence.  The  college,  if  it  please,  may  admit  a  procurator  of  one 
not  detained  by  an  impediment.1  If  the  vocal  should  die  before 
the  election  takes  place,  the  office  of  procurator  ceases,  but  if  the 
electoral  body,  unaware  of  the  vocal's  death,  admits  the  vote  by 
proxy,  the  election  is  valid.  No  capitular  is  bound  to  act  as 
procurator  for  an  absent  elector,  and  if  an  outsider  is  instituted, 
the  college  may  refuse  to  admit  him,  if  it  sees  fit.  Although  a 
procurator  cannot  cast  his  own  vote  for  one  candidate,  and  that 
of  him  whose  procurator  he  is  for  another,  unless  the  procura- 
tion has  been  given  for  a  certain  person,  still  if  two  candidates 
are  equally  eligible,  he  may  in  conscience  cast  one  vote  for  each, 
unless  this  be  forbidden  by  law ;  if,  however,  the  two  candidates 
are  of  unequal  merit,  the  procurator  is  bound  to  cast  the  two 
votes  for  the  more  worthy.  Procurators  who  do  not  belong  to 
the  college  must  have  all  the  qualifications  required  of  vocals. 
A  procurator  may  sub-delegate  if  this  faculty  be  conceded  in  the 
mandate,  otherwise  sub-delegation  is  doubtful  and  uncertain. 
When  several  procurators  are  instituted  in  solidum,  "melior  est 
conditio  occupantis";  if  two  or  more  should  reach  the  electoral 
chamber  at  the  same  time,  that  one  is  to  be  admitted,  whom  the 
chapter  or  majority  of  the  chapter  agrees  upon,  if  the  chapter 
can  come  to  no  agreement,  then  the  one  first  named  in  the  man- 
date is  admitted. 

All  absent  electors  can  elect  a  procurator  unless  prohibited 
by  particular  statute.  The  Sacred  Congregation  of  the  Council 
declared  valid  elections  by  proxy  in  religious  institutes,  unless 
otherwise  ordained  by  the  particular  laws  of  the  institutes.2  In 
the  Order  of  Friars  Preachers  absent  vocals  are  forbidden  to 
elect  either  by  letter  or  by  proxy. 

V.  Electors  must  be  in  sacred  orders,  in  those  of  the  sub- 
diaconate  at  least.  This  condition  excludes  two  classes  of  per- 
sons from  elections :  lay  brothers  and  clerics  not  in  sub-deacon's 
orders.  Under  the  name  of  lay  brothers  we  do  not  include  monks 
or  religious,  who  are  deputed  to  choral  duties  and  the  divine  min- 
istry, for  in  ancient  times  these  monks — even  though  there 
chanced  to  be  priests  or  clerics  among  them — always  elected  their 
abbots.  Neither  do  our  remarks  refer  to  those  religions,  mil- 
itary orders,  for  example,  in  which  lay  religious  conduct  the  elec- 
tions, but  only  to  ecclesiastical  colleges  in  which  clerics  are  ap- 
pointed to  celebrate  the  divine  mysteries. 

1  lb.  n.  39. 

2  lb.  n.  40. 


38  CANONICAL    ELECTIONS 

This  condition  was  prescribed  by  the  following  decree  of 
the  Council  of  Trent:1  "For  the  future  no  one  in  cathedral 
churches  or  secular  colleges  shall  have  a  voice  in  chapter — even 
if  freely  conceded  by  others — unless  he  be  constituted  in  the 
order  of  subdiaconate  at  least."  Some  authors  contend  that  this 
decree  includes  institutes  of  regulars,  first  because  the  decree 
speaks  absolutely  of  all  ecclesiastical  colleges,  and  secondly  be- 
cause this  is  the  general  practice  of  religious  orders.2  But  others 
hold  the  opposite,  and  base  their  opinion  on  a  declaration  of  the 
Sacred  Congregation  of  the  Council  (May  22,  1577)  that  religious 
even  though  not  in  sacred  orders  could  have  voice  in  elections, 
since  the  Tridentine  decree  did  not  include  monasteries  of  regu- 
lars, but  only  their  cathedral  churches.3  However,  in  this  point, 
as  well  as  in  others,  the  particular  laws  and  customs  of  each 
order  must  be  observed. 

Before  passing  to  the  next  condition,  we  shall  speak  briefly 
on  a  few  points  that  are  frequently  controverted  among  canon- 
ists. Although  some  hold  that  lay  brothers  and  clerics  not  in 
major  orders  cannot  by  custom  prescribe  active  voice  in  canonical 
elections,4  still  the  opposite  seems  more  probable.  For  the  chap- 
ter "De  consuetudine"  says  that  custom  reasonably  and  legiti- 
mately prescribed  derogates  from  a  law.5  For  what  can  be  de- 
stroyed by  a  just  law,  can  be  destroyed  by  a  just  custom,  which 
is  equivalent  to  a  just  law.  Secondly  a  cleric  who  during  an  elec- 
tion satisfies  the  required  conditions — in  respect  to  age,  reception 
of  orders,  and  the  like — must  be  admitted  to  the  election,  but  the 
electors  are  not  held  to  await  such  a  person's  becoming  qualified.6 
This  is  extended  to  one  who  by  papal  dispensation  has  been  or- 
dained before  the  required  age.  It  also  holds  for  those  who  have 
been  surreptitiously  and  illegitimately  ordained.7  But  those  thus 
ordained  are  ipso  facto  suspended,8  and  hence  must  not  be  admit- 
ted until  the  suspension  shall  have  been  removed.  Thirdly,  a 
capitular  having  the  power  of  jurisdiction,  but  not  of  orders,  can 
transact  those  matters  of  election  which  pertain  to  the  jurisdic- 
tion of  his  office,  although  he  cannot  vote  in  the  election  itself, 


1  sess.  22,  cap.  4  de  reform. 

2  Sylvius,  electio  I,  n.  3;    Suarez  II,  c.  4,  n.  5. 

3  Tab.,  electio  I,  n.  5;    Rodriq.  II,  q.  52,  a.  5. 

4  Barbosa,  c.  2,  n.  3;    Donatus,  q.  6,  n.  5. 

°Panormitanus,  lb.  n.  9;    Sanchez,  1.  7  de  mat.,  d.  4,  n.  14;    Suarez, 
7  de  legibus,  c.  19,  n.  14. 
6  Const.  D.  II  c.  II. 
'  Clem.  2  de  aetate. 
8  Pius  II.  "Cum  ex  sacrorum,." 


CANONICAL    ELECTIONS  39 

nor  be  present  therein.  Wherefore,  in  the  absence  of  the  dean, 
the  archdeacon,  even  though  not  a  sub-deacon,  can  convoke  the 
chapter,  propose  what  is  to  be  done,  and  receive  resolutions,  for 
these  things  are  offices  of  jurisdiction  and  not  of  orders.  Like- 
wise in  the  Order  of  Friars  Preachers  a  vicar  sent  from  one  con- 
vent to  govern  another — passing  over  for  the  present  the  two  in- 
stances in  which  he  can  be  sent  with  active  voice — assembles  the 
chapter,  gives  the  necessary  instructions,  absolves  the  vocals 
from  excommunication,  when  necessary,  and  in  fine  does  every- 
thing which  pertains  to  his  jurisdiction.  A  sub-prior  will  act  in 
like  manner,  if  it  chance  that  he  has  no  voice  in  the  election 
(Rome,  1601).  Finally,  one  admitted  to  a  chapter  of  canons  by 
dispensation,  is  not  thereby  dispensed  to  receive  sacred  orders ; 
hence  one  so  dispensed,  does  not  in  virtue  of  this  dispensation 
acquire  active  voice  in  election.1 

VI.  Vocals  censured  with  sentence  of  excommunication  are 
also  deprived  of  active  voice.  Excommunication  is  either  major 
or  minor.  The  latter  prohibits  the  reception  of  the  sacraments, 
and  no  longer  exists  since  the  publication  of  the  Constitution 
"Apostolicae  Sedis."2  The  former  cuts  a  guilty  christian  off  from 
the  Church  and  deprives  him  of  its  spiritual  favors.  Those  cen- 
sured with  major  excommunication  are  divided  into  two  classes : 
according  as  they  are  to  be  shunned  (vitandi),  or  tolerated  (tole- 
rati),  or,  in  other  words,  according  as  they  have  or  have  not  been 
formally  pronounced  excommunicated  by  the  Church. 

Those  to  be  shunned  cannot  take  part  in  elections,  and  were 
they  knowingly  admitted,  the  election  would  be  ipso  facto  null 
and  void.  Were  such  a  person  admitted  in  good  faith,  the  elec- 
tion would  be  valid,  provided  his  vote  did  not  decide  the  election. 
It  would  likewise  be  valid  if  he  could  not  be  expelled  without 
grave  danger  or  scandal.  But  in  this  case,  the  electors  must  pro- 
test before  witnesses,  publicly,  if  possible,  against  his  presence, 
and  declare  his  vote  will  not  be  considered.3  If  the  electors  are 
not  certain  that  said  person  has  been  formally  censured,  they 
cannot  eject  him  from  the  chapter,  because  in  doubt  every  one 
must  be  left  in  peaceful  possession  of  his  rights. 

In  regard  to  a  tolerated  excommunicated  person,  if  no  one 
makes  exception  to  his  being  present,  the  election  is  valid,  and 
cannot  be  annulled.  The  vocals  commit  no  fault  in  admitting 
him,  for  they  are  not  obliged  to  avoid  one  whom  the  Church  tol- 

'Rota,  June  23,  1606. 

2cf.  S.  C.  S.  O.  ad  IV.  Jan.  6,  1884. 

3  Sylvius,  electio,  n.  17. 


40  CANONICAL    ELECTIONS 

erates.  Moreover,  election  being  an  act  of  public  office,  what- 
ever is  done  by  a  tolerated  excommunicant  is  sustained  by  the 
Church.  Wherefore,  if  all  the  electors  are  thus  excommunicated, 
the  election  is  valid,  for  excommunication  does  not  deprive  a  per- 
son of  office  or  jurisdiction  until  a  formal  declaration  has  been 
made  to  this  effect.  The  election  is  also  valid,  if  conducted  by  one 
vocal  only,  and  he  a  tolerated  excommunicant.1  The  same  holds 
if  an  exception  of  excommunication  is  opposed  after  the  election 
has  been  concluded.  If  the  exception  were  interposed  prior  to 
the  election,  the  election  is  voidable.  If  it  is  evident,  or  even 
doubtful  ,that  the  election  was  decided  by  the  excommunicant's 
vote,  it  must  be  cassed ;  but  if  it  is  certain  that  his  vote  in  no  way 
decided  the  election,  said  election  must  be  declared  valid,  and 
sustained.  If,  in  this  hypothesis,  particular  statutes  require  un- 
animous consent  for  a  valid  election,  one  opposing  vote  of  the 
excommunicant  would  not  invalidate  the  election,  for  the  candi- 
date would  have  received  the  unanimous  vote  of  all  the  qualified 
vocals,  which  alone  constitutes  a  unanimous  election. 

In  the  election  of  a  Roman  Pontiff  excommunication  does 
not  nullify,  even  though  every  elector  be  excommunicated.2  To 
avoid  the  danger  of  schisms  in  the  Church,  it  was  most  wisely 
decreed  that  exceptions  of  excommunication  cannot  be  resorted 
to  in  papal  elections. 

In  the  Order  of  Friars  Preachers  no  excommunicant  should 
be  deprived  of  active  voice,  unless  he  has  been  pronounced  ex- 
communicated by  judicial  sentence,  but  an  exception  may  be 
made  against  him.y  The  electors  can  and  should  eject  a  notorious 
excommunicant,  if  this  can  be  done  without  scandal,  but  they 
are  not  bound  to  do  so.4  The  excommunicant  himself  sins  in 
taking  part  in  an  election. 

VII.  Suspension  is  another  censure  which  deprives  a  vocal 
of  the  right  of  exercising  active  voice.  It  is  a  censure  which  de- 
prives a  cleric,  wholly  or  partially,  of  the  power  of  orders,  office, 
or  benefice.  A  person  simpliciter  suspended  is  one  who  is  sus- 
pended from  office  and  benefice,  such  a  one,  therefore,  cannot 
vote  in  canonical  elections.  The  same  is  true  of  him  who  is  sus- 
pended from  office,  for  by  suspension  from  office  we  understand 
suspension  from  all  clerical  exercises.  Suspension  from  one  par- 
ticular office,  however,  does  not  prevent  one  from  taking  part  in 

1  Suarez,  sec.  2,  n.  3. 

2  Pius    IV.    "In    eligendis";     Greg.    XV.    "Aeterni    Patris";     Pius    X. 
"Vacante   Sede  Apostolica." 

3  Const,  n.  521. 

4  Passerini,  lb.  n.  83. 


CANONICAL    ELECTIONS  41 

elections.  Suspension  from  a  benefice  does  not  deprive  an  elector 
of  his  right  to  vote,  for  this  species  of  suspension  takes  from  a 
person  the  right  of  receiving  the  fruits  of  a  benefice,  but  in  no 
way  interferes  with  the  right  of  election  which  is  an  official  act. 
Suspension  from  orders  does  not  prevent  one  from  electing,  be- 
cause election  is  not  an  act  of  orders,  but  of  jurisdiction.1  The 
discipline  given  in  the  preceding  section  for  excommunicants — 
both  tolerated  and  those  to  be  shunned — obtains  also  for  those  in 
like  manner  suspended.2  Neither  major  nor  minor  suspension 
deprives  a  vocal  of  the  right  of  suffrage.  To  sum  up  only  sus- 
pension simpliciter  from  office  and  from  election  for  a  particular 
reason  deprives  one  of  active  voice,  suspension  from  a  benefice 
or  from  orders  do  not.  A  suspended  vocal  sins  in  exercising 
active  voice,  of  which  he  has  been  deprived. 

VIII.  Not  only  excommunication  and  suspension,  but  also 
interdict  takes  away  the  right  and  faculty  of  voting.3  And  since 
interdict  is  an  ecclesiastical  censure,  and  the  chapter  "Ad  evi- 
tanda"  speaks  universally  of  censures,  what  has  been  said  of  ex- 
communication is  proportionately  understood  of  interdict,  namely 
that  an  interdicted  elector  not  formally  so  declared  by  judicial 
sentence,  validly  exercises  suffrage,  though  he  sins  in  so  doing. 
We  shall  speak  later  of  election  held  in  interdicted  places. 

IX.  The  ninth  condition  excludes  from  elections  one  who  has 
incurred  irregularity.4  Others,  however,  hold  contrary.5  Both 
parties  base  their  opinion  on  a  text  in  the  chapter  "Is  qui,"  which 
states  that  he  who  celebrates  in  an  interdicted  place  incurs  irreg- 
ularity, and  thereby  becomes  disqualified  and  should  not  be  ad- 
mitted to  elections  with  the  others.  The  negatives  apply  this 
doctrine  to  all  species  of  irregularity,  while  the  affirmatives  re- 
strict it  to  that  irregularity  alone,  which  is  incurred  by  celebrat- 
ing in  an  interdicted  place.  We  prefer  the  second  opinion,  for 
since  irregularity  impedes  only  the  execution  of  orders,  and  not 
of  jurisdiction,  neither  does  it  per  se  nor  consecutively  impede  the 
act  of  electing  which  is  not  an  act  of  orders  but  of  jurisdiction. 
Hence  we  think  it  more  probable  that  irregulars  can  exercise 
suffrage,  except  in  cases  where  they  have  incurred  irregularity 
by  celebrating  in  an  interdicted  place,  or  have  become  infamous, 
,or  have  been  condemned  of  homicide.6    In  these  cases  the  priva- 

'Ib.  n.  95. 

2Suarez.  V,  disp.  26,  sect.  2,  n.  2;    Barbosa  I  c.  19,  n.  23. 

3Hostiensis.  lb.  n.  7;    Sylvius,  q.  4. 

4  Sylvius,  Miranda,  Layman,  Barbosa,  Donatus. 

6  Suarez,  Bonacius,  Sigismund. 

•Const.  Pius  II..  Pius  V.,  Sixtus  V. 


42  CANONICAL    ELECTIONS 

tion  of  active  voice  is  not  by  reason  of  the  irregularity,  but  a 
penalty  annexed.1  Moreover,  even  in  these  cases  the  irregularity 
must  be  formally  declared  by  judicial  sentence,  before  those  who 
have  incurred  it  can  be  excluded  from  an  election.  In  the  Order 
of  Friars  Preachers  all  who  have  incurred  irregularity  in  any  way 
are  deprived  of  active  voice  (Narbonne  1354). 

X.  In  addition  to  the  above  requirements,  electors  must  also 
have  all  the  conditions  required  by  the  particular  statutes  of  their 
various  colleges. 

In  the  Order  of  Friars  Preachers  several  conditions  are  re- 
quired by  particular  statutes  for  conventual  suffrage:  1°  Vocals 
must  be  assigned  to  a  convent  two  months  previous  to  the  va- 
cancy of  the  priorship.  The  two  months  begins  on  the  day  when 
the  assignation  is  read  publicly  in  the  convent  ad  quern.  To 
elect  a  socius  to  a  provincial  chapter,  the  vocal  must  be  assigned 
to  the  convent  two  months  before  said  election  takes  place.  This 
requirement  is  not  necessary:  (a)  in  case  of  the  sudden  death 
of  a  prior.  Likewise,  when  the  office  becomes  vacant  either  by 
the  death,  removal  or  resignation  of  the  prior,  the  subprior  ac- 
quires active  voice,  even  though  he  has  been  assigned  to  the  con- 
vent for  less  than  two  months  ;  (b)  when  a  vicar  has  been  sent 
by  the  provincial  to  conduct  an  election.  A  vicar  may  be  thus 
sent  only  in  two  cases :  when  there  is  a  great  dissension  among 
the  vocals,  or  when  their  incompetency  is  such  that  no  one  among 
them  knows  how  to  direct  the  election  proceedings;  (c)  when 
a  lector  (primarius  vel  unicus)  has  been  appointed  to  take  charge 
of  the  studium,  or  when  an  assignment  has  been  made  by  the 
definitors  of  the  provincial  chapter ;  (d)  when  a  vocal  who  has 
been  prior  of  another  convent,  returns  to  the  convent  of  his  for- 
mer assignment  on  the  expiration  of  his  office ;  (e)  when  a  vocal 
two  months  previous  to  election  is  assigned  to  another  convent 
as  prior  or  for  any  other  office,  he  retains  his  voice  in  the  convent 
a  quo  until  a  new  prior  is  elected,  confirmed  and  installed. 

2°  They  must  have  completed  nine  years  from  first  profes- 
sion and  have  been  ordained  priests  (Avila,  1895).  Lay  brothers 
who  are  transferred  to  the  clerical  state,  do  not  acquire  active 
voice  until  twelve  rears  from  the  date  of  transferral  (Valladolid, 
1605;   Rome,  1629). 

3°  They  must  have  completed  their  studies,  and  have  re- 
ceived approbation  for  hearing  confessions  unless  an  election 
occurs  within  six  months  from  the  completion  of  their  studies. 

5  Passerini,  lb.  n.  105. 


CANONICAL    ELECTIONS  43 

4°  They  cannot  by  reason  of  a  new  assignation  vote  twice 
or  more  in  the  same  year.  Neither  can  they  who  renounce  their 
vote  in  one  convent  elect  in  another  under  pretense  of  a  new  as- 
signment. Exception  is  made  for  regents,  lectors,  masters  of 
studies,  and  sub-priors,  not  however  for  lectors  of  cases  of 
conscience. 

5°  A  prior  who,  during  his  term  of  office,  is  assigned  by  sim- 
ple assignation  to  the  convent  of  which  he  is  prior  has  no  vote  in 
the  election  of  his  successor  until  two  months  after  the  expira- 
tion of  his  office.  If  during  his  office  he  be  assigned  to  another 
convent,  he  can  take  no  part  in  the  elections  of  this  convent  unless 
he  has  served  the  convent  in  good  faith  for  two  months  after  the 
completion  of  his  priorship. 

6°  Before  brothers  of  one  province  can  vote  in  another  they 
must  have  been  assigned  for  a  year,  or  at  least  the  greater  part 
of  a  year  in  the  province  in  which  the  election  is  to  take  place. 
There  are  two  exceptions  to  this  discipline :  the  first  is  when  a 
brother  of  one  province  is  affiliated  to  another,  he  immediately 
acquires  active  voice,  provided  he  has  the  other  requisites  of 
common  law  and  particular  statute.  The  second  case  is  when 
brothers  go  from  Spain  to  the  Indies,  if  eligible  by  law,  they  ac- 
quire voice  as  soon  as  they  shall  have  reached  those  provinces 
(Rome,  1589). 

7°  Vocals  must  not  remain  outside  the  cloister,  for  those 
dwelling  outside  the  cloister  under  any  pretext  whatsoever — 
even  with  permission  of  superiors,  lose  active  and  passive  voice. 
Therefore,  those  raised  to  dignities  outside  the  order,  or  who 
have  received  benefices,  no  longer  enjoy  suffrage.  This  must 
be  understood  of  secular  benefices,  not  of  those  united  to  the 
order.  Hence  pastors  of  churches  connected  with  the  order  are 
not  considered  outside  the  cloister  while  in  their  parishes  by  the 
obedience  of  superiors.1  But  chaplains  of  secular  churches  and 
of  other  orders,  provided  they  remain  outside  the  cloister  day 
and  night,  confessors  of  nuns,  kings,  and  princes,  theologians 
of  bishops  and  cardinals,  and  all  others  outside  the  obedience  of 
the  order,  even  with  permission  of  superiors,  can  neither  elect 
nor  be  elected  (Rome,  1601).  Those  who  remain  outside  the 
order  without  the  consent  of  superiors  cannot  exercise  pass- 
ive voice  until  ten  years  after  their  return  (Rome,  1525). 

Those  who  for  any  reason,  except  for  the  office  of  Sacred 
Inquisition,  permanently  remain  outside  their  convents  for  more 
than   six  months   immediately  previous   to   an   election,   cannot 

1  Camillus,  c.  5,  n.  8. 


44  CANONICAL    ELECTIONS 

exercise  active  voice  therein.  Likewise,  those  who  ordinarily 
dwell  outside,  v.  g\,  in  a  vicariate  erected  with  apostolic  author- 
ity, are  not  admitted  to  conventual  elections  (Lyons,  1891  ; 
Vienna,  1898). 

The  Chapter  of  Rome  (1553)  declared  that  the  master  gen- 
eral could  dispense  from  the  laws  regarding  the  exercise  of  voice 
by  one  outside  the  cloister.  But  a  difficulty  here  arises,  for  the 
law  concerning  secular  benefices  is  not  a  constitution  of  the  or- 
der, but  a  decree  of  Sixtus  IV  (1478).  And  since  a  general  can- 
not dispense  in  papal  legislation,  we  think  that  the  general  can- 
not admit  to  voice  a  vocal  holding  a  secular  benefice,  unless  he 
renounce  it — although  he  can  dispense  him  from  remaining  in 
the  convent.1 

XL  Electors  cannot  vote  in  elections,  if  they  have  been 
deprived  of  voice.  But  they  should  not  be  excluded  before  they 
have  been  declared  deprived  by  judicial  sentence.2  In  the  Order 
of  Friars  Preachers  this  declaration  must  be  made  one  month 
before  the  time  of  an  election,  or  when  in  the  congregation  of 
vocals  one  is  found  to  lack  the  conditions  required  for  exer- 
cise of  voice. 

One  juridically  deprived  of  voice  should  be  excluded  from 
the  chapter  even  with  force,  if  necessary,  except  when  he  makes 
a  legitimate  appeal,  which  suspends  the  sentence  and  its  effect. 
The  discipline  concerning  those  deprived  of  voice  but  tolerated 
and  those  to  be  shunned,  and  likewise  that  of  interposing  excep- 
tions is  the  same  as  that  given  above  for  excommunicated  vocals. 

XII.  All  who  have  been  branded  as  infamous  are  excluded 
from  election.  Infamy  is  the  loss  of  reputation,  and  arises  either 
from  law  or  from  fact.  Infamy  of  fact  does  not  destroy  the  fac- 
ulty of  voting,  for  it  very  frequently  is  occasioned  by  ignorance, 
sarcasm,  imprudence,  or  hatred ;  neither  does  it  prevent  one  from 
being  a  scrutineer.  Those  branded  with  infamy  of  law  cannot 
elect,  for  election  is  a  legitimate  act,  and  since  legitimate  acts 
are  prohibited  to  the  infamous,  it  follows  that  one  thus  branded 
cannot  elect.  Infamy  of  either  kind  is  not  incurred  before  juridi 
cal  sentence  has  been  given  to  this  effect.  Hence  before  he  has 
been  juridically  declared  infamous,  an  elector  can  validly  take 
part  in  elections,  and  does  not  sin  in  so  doing. 

1  Passerini,  lb.  u.   124. 

2  lb.  n.  135. 


CHAPTER  IV 
Convocation  of  Electors 

Having  established  the  efficient  cause  of  election  in  the  pre- 
ceding chapter,  we  shall  now  offer  a  consideration  of  its  formal 
cause.  And  since  election  pertains  per  se  primo  to  a  college,  its 
formal  cause  consists  in  the  collegiate  congregation  of  those 
electors  who  compose  the  college.  To  bring  this  about,  the 
electors  must  be  summoned.  Hence  a  treatment  of  the  formal 
cause  of  election  is  an  exposition  of  the  doctrine  regarding  the 
convocation  of  electors,  to  which  this  present  chapter  will  be 
devoted. 

We  cannot  lay  down  a  particular  rule  for  the  convocation 
of  electors,  for  this  depends  upon  the  diversity  of  elections  and 
colleges,  their  respective  rights  and  customs.  Wherefore,  the 
general  rule  is  that  the  electors  should  be  convoked  by  the  one 
upon  whom  this  office  is  imposed  by  law  or  cvistom.  If  there 
be  no  such  law  or  custom,  then  the  duty  falls  to  him  who  is  old- 
est in  office,  unless  there  be  another  of  greater  dignity,  in  which 
case  the  latter  summons  the  electors. 

In  the  Order  of  Friars  Preachers  the  sub-prior  ordinarily 
convokes  the  electors.  If  a  convent  is  without  a  superior,  the 
three  capitulars  oldest  by  profession  elect  a  vicar,  who  convokes 
a  chapter  for  the  election  of  a  prior,  unless  other  provision  be 
made  by  higher  superiors.1  If  the  sub-prior,  whose  duty  it  is  to 
assemble  the  electors  three  or  four  days  after  the  vacancy  of  the 
priorship,  or  the  vicar,  if  there  be  no  subprior,  refuse  to  call  the 
chapter  at  the  request  of  the  majority  of  the  vocals,  the  oldest 
vocal  may  do  so,  and  he  unwilling,  then  the  next  oldest  in  relig- 
ion, and  so  on  until  the  election  is  begun.2 

The  convocation  of  electors  is  an  act  of  jurisdiction,  hence 
it  always  pertains  to  him  who  is  the  head  or  superior  of  the  com- 
munity, even  though  he  may  have  no  voice  in  the  election.  In 
the  elections  of  conventual  priors,  or  of  socii  to  provincial  chap- 
ters, the  superior  is  the  sub-prior,  or  he  being  absent,  the  vicar, 
unless  the  provincial  or  general  appoints  a  special  vicar  to  pre- 
side at  the  election.    The  superior  of  a  provincial  election  is  the 

1  Const.  D.  II.  C.  II. 
"  Const,  n.  548. 


46  CANONICAL    ELECTIONS 

vicar  of  the  province,  but  in  the  election  of  definitors  of  a  pro- 
vincial chapter,  either  the  provincial  himself  or  more  commonly 
the  vicar  of  the  province  presides.  If  the  provincial  is  not  pres- 
ent at  the  election  of  definitors  of  a  general  chapter,  the  presiding 
vicar  takes  charge.  When  an  election  of  a  master  general  oc- 
curs, the  vicar  of  the  order,  even  though  not  a  vocal,  is  the  pre- 
siding prelate.  Conventual  priors  cannot  convoke  a  chapter  for 
the  election  of  a  socius,  for  special  law  forbids  the  prior  to  take 
part  in  such  elections. 

Those  vocals  should  be  called  to  election  qui  debent,  volunt, 
et  possunt  commode  interesse.1  Therefore  all  those — whether 
present  or  absent — who  have  the  right  to  elect  should  be  sum- 
moned. If  there  is  a  custom  of  not  calling  the  absent,  it  should 
be  observed.2  A  period  of  ten  years  suffices  for  such  a  custom 
to  obtain.3  He  who  is  in  possession  of  election,  even  though  his 
right  be  not  a  true  one,  validly  elects  and  should  be  called,  for 
the  right  of  election  follows  possession.  But  mere  possession 
with  common  error  will  not  suffice,  there  is  further  required  a 
colored  title  conferred  by  a  competent  superior.4  Exceptions 
made  after  election  against  such  a  vocal  are  of  no  moment,  even 
though  his  defects  are  made  manifest,  for  at  the  time  of  the 
election  he  was  in  peaceful  possession  by  a  common  error  and 
colored  title.  For  outsiders,  however,  possession,  good  faith,  and 
colored  title  are  not  sufficient,  unless  the  possession  were  lawfully 
prescribed  by  an  existing  custom.  We  shall  return  to  this  point 
on  a  later  page,  where  we  shall  explain  more  in  detail  who  are 
and  who  are  not  to  be  called  in  certain  cases. 

Every  vocal  is  obliged  to  vote,  and  is  therefore  obliged  to 
be  present  at  elections,  for  this  obligation — supposing  the  insti- 
tution of  election — is  based  on  natural  law.  A  person  possessing 
a  faculty  necessary  to  the  common  good  is  bound  to  exercise  that 
faculty.  This  obligation  does  not  bind  per  se  under  pain  of  mor- 
tal sin  or  even  venial ;  it  could  bind  either  way,  or  it  could  acci- 
dentally cease.  Hence  the  gravity  of  the  obligation  is  to  be  reck- 
oned in  proportion  to  its  necessity  to  the  common  good.  If,  for 
example,  a  heretic  were  to  be  elected  bishop,  an  elector  is  bound 
— whether  the  outcome  be  doubtful  or  certain — to  do  all  in  his 
power  to  prevent  the  election,  even  at  the  risk  of  his  life.5 

1  cap.   Quia    propter. 

2  Sylvius,  electio  I,  n.  6,  d.  2. 

3  Miranda,  q.  26,  n  .6;    Barbosa,  I,  c.  19,  n.  89. 

4Cajetan,  confessionis  iteratio;    Sylvius,  Confessor  1  q.  19. 
'Passerini,  lb.  c.  11,  n.  22. 


CANONICAL    ELECTIONS  47 

If  an  elector  is  in  doubt  as  to  whom  he  should  elect,  Sylvius 
maintains  he  is  not  bound  to  vote  at  all.1  We  prefer  the  opposite 
opinion,  for  the  renunciation  of  a  vote  very  frequently  favors  the 
election  of  an  unworthy  candidate.  Should  he  consider  his  right 
to  vote  doubtful,  he  may  renounce  it.  But  if  he  is  certain  of  his 
right,  he  is  bound  to  vote  for  the  one  he  considers  the  most  wor- 
thy, for  by  renunciation,  he  at  least  exposes  himself  to  the  danger 
of  favoring  an  evil  and  unjust  election.  Under  renunciation  of 
voice  comes  also  the  casting  of  blank  votes,  for  these  votes  are 
not  computed,  but  subtracted  from  the  whole  number,  and  there- 
fore affect  the  election,  and  could  further  the  election  of  an  un- 
worthy candidate.  Electors  are  therefore  forbidden  to  cast  such 
votes,  unless  they  are  certain  that  by  so  doing,  no  injury  will 
accrue  to  the  community. 

The  above  principles  are  indeed  true  and  should  be  adhered 
to,  still  in  practice  it  generally  makes  slight  difference  to  the 
community  if  one  or  two  electors  absent  themselves  from  an 
election.  Hence  renunciation  of  voice  is  not  of  its  nature  a  mor- 
tal sin,  because  it  is  not  per  se  a  grave  injury  to  the  community 
were  one  of  the  electors  to  neglect  his  duty.  Even  the  negligence 
of  the  whole  chapter  is  not  per  se  a  mortal  sin,  for  it  is  not 
strictly  speaking  a  grave  injury  to  the  community,  because  in 
such  a  case  the  election  would  devolve  by  law  to  the  superior. 
And  since  a  prelacy  is  often  better  provided  for  by  the  institution 
of  a  superior  than  by  the  election  of  a  college,  good  could  follow 
from  the  neglect  of  a  chapter  to  vote.  But  all  things  considered, 
it  is  much  better  and  safer  for  every  elector  to  exercise  his  right, 
because  his  not  doing  so  could  easily  injure  the  common  good,  and 
thus  constitute  a  mortal  sin  were  the  injury  of  a  serious  nature. 

The  chapter  "Quia  propter"  says  that  those  should  be  sum- 
moned to  an  election,  who  wish  (qui  volunt)  to  take  part  therein. 
This  does  not  hold  when  the  interest  of  the  Church  demands  their 
presence,  for  the  good  of  the  Church  preponderates  that  of  elect- 
ors. The  superior  of  the  election,  therefore,  the  public  good 
demanding,  can  compel  an  elector  to  come  to  an  election,  and  to 
cast  a  vote  de  se  useful,  for  to  cast  a  blank  vote  is  not  to  elect, 
but  to  renounce  one's  voice.2 

The  decree  also  states  that  those  must  be  called  who  can 
conveniently  present  themselves  (qui  possunt  commode  inte- 
resse).  It  is  important  to  note  that  the  word  conveniently  re- 
fers not  to  the  convenience  of  the  electors,  but  rather  to  that  of 


'Electio  2.  n.  15. 
2  lb.  n.  23 


48  CANONICAL    ELECTIONS 

the  Church.1  Wherefore,  when  the  necessity  of  holding  an  elec- 
tion is  so  imminent  that  there  is  no  time  to  call  the  electors,  or 
when  war,  pestilence  and  the  like  prevents  their  being  called,  or 
when  by  calling  them  serious  injury  would  fall  upon  the  Church, 
no  summons  should  be  sent  to  them,  notwithstanding  any  cus- 
tom to  the  contrary.2  For  when  a  grave  injury  threatens  the 
Church,  the  custom  of  calling  electors  must  not  be  observed. 
Cases  of  doubt  are  to  be  settled  by  the  superior  of  the  election, 
but  to  avoid  subsequent  difficulties  he  should  consult  the  electors 
present,  and  if  possible  the  superior  upon  whom  the  confirmation 
of  the  election  depends.3 

Even  though  all  the  electors  could  be  called  without  grave 
injury  to  the  Church,  still  it  is  not  necessary  to  call  those  who 
are  at  too  great  a  distance.4  The  Gloss  holds  that  all  who  are 
in  the  diocese  or  province  must  be  called.  We  hesitate  to  accept 
this  principle,  for  it  can  easily  happen  that  a  vocal,  though  within 
the  confines  of  a  province,  is  nevertheless  at  a  great  distance 
from  the  place  of  election,  while  another  outside  the  province  is 
near  at  hand.  It  seems,  then,  we  should  rather  consider  whether 
or  not  the  absent  vocal  can  be  conveniently  summoned.  Special 
laws  determining  the  distances  must  be  observed.  In  the  Order 
of  Friars  Preachers  those  vocals  must  be  called  who  are  not 
distant  more  than  one  day's  journey  by  ordinary  means  of  travel.5 
The  law  makes  no  provision  for  travel  by  aeroplane. 

Absent  vocals  whose  whereabouts  are  known,  should  if  con- 
venient be  called  personally,  unless  custom  ordain  otherwise. 
The  citation  should  be  made  by  letter  or  messenger,  and  for  a 
certain  day.  If  the  vocal  does  not  arrive  at  the  accustomed  hour 
for  holding  the  election,  the  other  electors  may  proceed  at  once 
with  the  election.  If  his  whereabouts  are  unknown  the  summons 
should  be  left  at  his  home ;  if  he  has  no  fixed  residence,  then  the 
citation  should  be  made  by  a  public  edict  on  the  doors  of  the 
church,  which  is  situated  in  a  place  where  he  usually  stops,  or  it 
should  be  read  publicly  in  the  chapter.  Finally,  if  his  whereabouts 
and  accustomed  place  of  dwelling  are  both  unknown,  and  diligent 
inquiry  has  been  made,  the  summons  is  to  be  fastened  on  the 
doors  of  the  place  in  which  the  election  is  to  be  held,  or  to  be 
read  in  the  chapter  or  at  the  public  table. 

1  cap.  "Quod  sicut,"  28  de  electione. 
!  cap.  "Ecclesiarum,"  dist.  11. 
3Passerini,  lb.,  n.  33. 
4  cap.  "Cum  inter"  8,  lb. 
5Avila,  1895. 


CANONICAL    ELECTIONS  49 

Those  present  should  be  summoned  orally  or  by  the  sound 
of  a  bell,  but  the  electors  must  be  previously  advised  that  this 
bell  is  a  summons  to  the  election  chamber.  In  some  institutes, 
as  in  the  Order  of  Friars  Preachers,  the  hour  appointed  for  the 
election  is  announced  either  in  the  refectory  or  in  some  other 
public  manner  on  the  day  previous  ;  where  this  custom  prevails 
individual  intimation  is  unnecessary.  If  after  a  convenient  time 
from  the  ringing  of  the  bell  the  capitulars  do  not  present  them- 
selves, or  if  they  are  not  at  hand  at  the  time  appointed,  the  other 
vocals  may  proceed  without  them,  though  it  is  better  to  notify 
them  that  the  chapter  is  awaiting  their  arrival.  Should  all  the 
electors  be  congregated  in  the  same  place,  they  may,  if  they 
wish,  proceed  with  the  election,  citation  in  such  a  case  being  un- 
necessary. 

If  on  the  appointed  day  the  election  is  postponed  for  a  defi- 
nite future  time,  the  electors — even  the  absent — need  not  be 
resummoned.  But  if  it  is  postponed  indefinitely  a  second  cita- 
tion must  be  sent  to  all.  Should  the  person  elected  refuse  his 
consent,  a  resummons  is  not  required,  for  every  elector  should 
know  that  another  election  is  to  take  place  as  soon  as  possible. 
Although  one  citation  is  sufficient,  still  if  the  time  and  place 
appointed  be  changed,  the  vocals  should  be  notified.  When  a 
time  and  place  are  fixed  by  law  or  custom,  no  intimation  is  needed, 
provided  that  the  vocals  know  that  the  office  is  vacant.1 

The  superior  of  the  election,  not  of  himself  but  with  the  con- 
sent of  the  majority  of  the  electors,  can  abbreviate  the  time  fixed 
by  law,  and  the  day  once  having  been  fixed,  the  superior  must  be 
present  thereon,  otherwise  the  vocals  may  hold  the  election  with- 
out him.  In  like  manner  the  majority  of  the  capitulars  can  re- 
strict the  prescribed  time,  and  compel  the  superior  to  conform, 
if  he  can  give  no  just  reason  for  not  doing  so ;  but  for  a  sufficient 
reason  he  can  prevent  this  anticipation  and  defer  the  election  to 
the  lawful  time.  And  since  the  law  concedes  to  the  superior  the 
right  of  determining  the  day  within  the  time  allotted  for  elec- 
tion, his  judgment — if  reasonable — must  be  accepted  by  the  elec- 
tors, and  only  in  the  last  hour  of  the  prescribed  time — which 
passing,  the  election  would  devolve  to  higher  authority — can  the 
electors  proceed  without  him.  In  the  Order  of  Friars  Preachers 
it  is  decreed  that  after  the  third  or  fourth  day  from  the  notifica- 
tion of  the  vacancy  of  the  priorship,  the  majority  of  vocals  can 
compel  the  superior  of  the  election  to  convene  the  chapter,  and 
if  he  refuse,  they  may  proceed  without  him.2 

*  Panormitanus,  n.  8,  de  electione. 
2  Const,  n.  548. 


50  CANONICAL    ELECTIONS 

Electors  who  are  disqualified  according  to  natural  law  should 
not  be  summoned.  Those  who  have  been  juridically  declared 
unqualified  must  not  be  called,  but  rather  expelled  if  they  pre- 
sent themselves.  But  vocals — no  matter  however  notorious  a 
crime  they  may  have  committed — who  will  be  deprived  of  voice 
only  by  a  condemnatory  sentence  (ferendae  sentiae).  should  be 
cited,  for  they  still  have  the  right  to  vote,  and  should  any  one 
protest,  the  protestation  is  not  to  be  heeded.  But  if  the  priva- 
tion is  to  be  imposed  by  a  declaratory  sentence  (latae  sententiae), 
they  should  not  be  called,  and  actions  for  annulment  are  not  ad- 
mitted, for  no  injury  was  done  by  not  calling  them,  since  they 
will  be  judged  to  have  been  deprived  of  voice  at  the  time  of  elec- 
tion.1 He  alone,  therefore,  whose  inhability  is  so  occult  that  he 
cannot  be  convicted  thereof,  can  enter  a  complaint  (exceptio  de 
contemptu)  if  he  is  not  called. 

Note  here  that  it  is  one  thing  to  expel  a  vocal,  and  another 
not  to  call  him.  The  first  takes  away  the  possession  of  voice,  so 
when  inhability  requires  judicial  sentence,  it  is  not  lawful  to 
expel  a  disqualified  vocal  by  private  authority.  Not  to  call  a  vocal 
does  not  deprive  him  of  his  possession,  but  merely  signifies  he 
has  no  voice.  No  injury  is  therefore  done  in  the  latter  case,  for 
since  he  has  already  been  deprived  of  voice  by  law,  he  has  for- 
feited the  right  to  be  cited,  although  he  still  retains  the  right  not 
to  be  expelled  and  deprived  of  his  possession.  For  if  such  a  per- 
son has  a  right  that  his  possession  be  not  taken  from  him,  he  has 
not  for  that  reason  a  right  that  there  be  given  to  him  something 
he  does  not  possess.2  To  avoid  subsequent  trouble  it  would  be 
better  to  call  him,  and  admit  him  under  protestation.  But  the 
electors  are  not  bound  to  await  his  arrival — even  though  called, 
and  he  cannot  enter  a  complain,  because  he  has  no  right  to  suf- 
frage. Some  hold  he  can  bring  suit  for  expenses  contracted,  be- 
cause the  summons  was  an  occasion  of  loss  to  him.3 

Should  an  elector  renounce  his  his  voice,  and  afterwards  re- 
gret his  having  done  so,  he  may  reclaim  it,  and  should  be  cited 
and  admitted  to  the  election,  otherwise  he  can  bring  action 
against  it.  Affairs  transacted  in  the  meantime  are  valid,  but  he 
must  have  part  in  those  that  follow.  For  active  voice  is  conceded 
for  the  public  good,  and  one  renouncing  something  pertaining  to 
the  public  good  always  has  the  obligation  of  reassuming  it. 

If  absent  vocals — sufficient  time  having  been  given — do  not 
come  to  the  chapter  at  the  appointed  time,  they  are  presumed  to 

1  Innoc.  c.  Cum  Vintonien  ;  Sylvius  lb.  n.  1 ;  Barbosa,  c.  2,  de  post.  n.  4. 

2  Sigismund,  d.  10,  n.  5. 
3Hostiensis,  Panormitanus. 


CANONICAL    ELECTIONS  51 

have  alienated  themselves  from  the  electoral  body,  but  if  they 
arrive  before  the  completion  of  the  election,  they  must  be  ad- 
mitted to  a  part  in  the  business  which  still  remains  to  be  trans- 
acted. Those  departing  from  an  assembled  chapter  at  the  time 
fixed  for  election  are  also  presumed  to  have  renounced  their 
voice,  and  if  by  waiting  their  return  the  election  would  devolve 
to  the  superior,  the  remaining  electors — whether  they  be  many, 
few  or  even  one — can  validly  elect,  and  the  departed  cannot  in- 
stitute annulment  proceedings.1  Even  in  the  election  of  a  Roman 
Pontiff,  if  but  one  cardinal  from  those  cited  remain,  he  can  hold 
the  election.2  When  the  allotted  time  has  not  expired,  a  vocal 
for  a  just  reason  may  appeal  for  an  extension,  and  the  other  elect- 
ors even  though  present  in  large  numbers  cannot  elect,  other- 
wise he  who  appealed  may  bring  suit  against  their  action,  and  at 
his  instance  the  election  is  cassed.  But  no  appeal  can  be  made, 
if  the  time  allowed  is  about  to  expire. 

In  the  Order  of  Friars  Preachers  those  who  do  not  respond 
to  the  summons  forfeit  their  right  to  vote.  If,  however,  after 
the  capitulars  assemble,  the  majority  should  depart,  the  minority 
cannot  proceed  with  the  election  until  the  full  time  granted  by 
the  constitutions  has  expired.  Should  the  majority  of  those  as- 
sembled disapprove  of  the  time  and  place  appointed  by  the  supe- 
rior, and  depart  from  the  chapter,  the  proceedings  must  be  sus- 
pended;  if  they  give  approval  they  may  recall  their  consent  at 
any  time  before  the  conclusion  of  election,  even  though  the 
scrutineers  have  already  begun  to  collect  the  ballots.  Although 
the  majority  has  not  the  right  to  neglect  the  citation,  still  it  has 
the  right  of  not  electing,  if  it  seems  good  to  them  to  defer  the 
election.3 

When  all  the  vocals  who  have  a  right  to  be  called  to  an  elec- 
tion are  not  called,  a  valid  election  requires  an  absolute  majority 
— or  even  two-thirds  where  law  or  custom  demands — not  of 
those  present,  but  of  those  both  present  and  absent.  Thus  if 
there  were  but  twenty  present  of  the  thirty  who  have  a  right  to 
be  present,  the  others  having  been  contemned,  it  is  not  sufficient 
for  the  elect  to  obtain  eleven  or  even  fifteen  votes,  but  to  be 
elected  validly  he  must  receive  sixteen,  or  where  a  majority  of 
two-thirds  is  required,  twenty  must  be  cast  for  him.  Where  the 
one  elected  was  nominated  by  the  majority  of  the  thirty  the 
election  is  valid  in  substance,  but  each  of  those  contemned  has 
the  right  to  file  an  exception  against  it.    If  one  or  more  of  those 

1  Passerini,  lb.  n.  93. 

^Ib. 

3Glossa,  Const.  D.  II.  C.  II. 


52  CANONICAL    ELECTIONS 

contemned  arrive  after  the  scrutiny  has  been  announced,  but  be- 
fore the  publication  of  the  election  in  the  name  of  the  college,  a 
new  scrutiny  must  be  taken,  but  the  other  transactions  should 
not  be  repeated.  If  one  contemned  arrive  after  the  election  has 
been  concluded,  the  chapter  cannot  resort  to  a  fresh  scrutiny.  An 
election  does  not  by  reason  of  vocals  having  been  contemned  de- 
volve to  a  superior,  but  it  pertains  to  the  same  electors  with  the 
addition  of  those  previously  contemned. 

The  fact  that  one  or  more  of  the  vocals  are  contemned  does 
not,  according  to  canon  law,  render  an  election  void,  but  it  is 
voidable  at  the  instance  of  the  person  or  persons  contemned.  Al- 
though an  election  is  invalid  if  the  majority  of  the  electors  were 
contemned,  because — as  shown  above — the  candidate  in  such  a 
case  cannot  obtain  a  majority  of  necessary  votes,  it  is  not,  how- 
ever, invalid  for  the  reason  that  the  vocals  were  contemned,  for 
the  calling  of  vocals  does  not  belong  to  the  substance  of  election, 
but  its  omission  is  unjust,  because  it  is  injurious  and  contrary  to 
their  rights.  No  prelate  inferior  to  the  Holy  Father  nor  general 
chapter  can  make  a  law  declaring  ipso  facto  null  an  election,  in 
which  one  or  more  vocals  were  contemned.1  But  an  election  to 
which  all  have  not  been  summoned  is  not  voidable  at  the  instance 
of  any  one  other  than  those  contemned,  for  the  injury  is  personal 
and  it  therefore  pertains  to  that  person  or  persons  to  enter  an 
action  for  annulment  or  to  consider  the  election  lawful.2 

Annulment  proceedings  must  be  filed  before  the  confirmation 
or  institution  of  the  candidate,  unless  it  is  manifest  that  the  con- 
temned vocal  was  unaware  of  the  election  and  confirmation,  in 
which  case  the  action  should  be  admitted  even  after  the  confirma- 
tion or  institution.  If  he  should  die  during  the  proceedings,  his 
successor  may  or  may  not  continue  the  case.3  The  burden  of 
proof  lies  with  the  electors  and  not  with  the  one  contemned,  be- 
cause the  presumption  is  that  the  latter  would  not  have  neglected 
to  exercise  his  right.  The  oath  of  a  messenger  is  sufficient  proof.4 
If  the  superior  of  the  election  cited  the  absentee  in  the  ordinary 
way  by  letter  or  messenger,  but  for  one  reason  or  another  he  did 
not  receive  the  message,  he  cannot  institute  annulment  proceed- 
ings, provided  it  is  evident  that  the  superior  in  good  faith  did 
what  he  could  to  notify  the  absent  vocal,  for  in  this  case  he  was 
not  contemned  by  the  superior  or  electors.     But  if  before  the 

1  Rota  in  Toletana  Canonicatus,  18  Maii,  1584. 

2  Passerini,  lb.  n.  120. 

3  Samuel,  n.  2. 

4Glossa  in  cap.  Quod  sicut. 


CANONICAL    ELECTIONS  53 

election  it  becomes  known  that  he  was  not  called,  and  there  is 
time  to  defer  the  election,  it  must  be  deferred  until  he  is  notified 
and  has  had  sufficient  time  to  reach  the  place  of  election.1 

The  right  of  religious  to  enter  suit  for  annulment  is  sharply 
controverted.  If  a  superior  acts  as  judge,  we  think  he  cannot 
forbid  an  elector  to  make  an  exception,  because  it  is  a  right  con- 
ceded by  law  to  all  ecclesiastics,  and  confirmed  by  common  cus- 
tom ;  hence  regular  superiors  cannot  deny  such  concessions  to 
their  subjects.  But  if  he  acts  as  a  prelate  in  virtue  of  the  do- 
minion, which  is  his  from  the  vow  of  obedience,  he  can  for  a 
just  reason  forbid  his  subject  to  file  a  complaint,  because  a  sub- 
ject is  bound  to  obey  the  precepts  of  a  superior,  and  to  sacrifice 
his  own  interest  for  the  common  good.2 

1  Passerini,  lb.  n.  129. 

2  Samuel,  Sigismund,  Passerini  lb. 


CHAPTER  V 

Persons  Eligible 

The  material  cause  of  canonical  election  is  the  persons  eligi- 
ble for  ecclesiastical  offices  or  benefices.  Those  persons  are  eli- 
gible who  meet  the  requirements  of  natural  and  ecclesiastical 
law,  and  also  of  the  particular  statutes  relating  to  the  office  to  be 
provided.  Our  paper  will  be  restricted  to  a  consideration  of  those 
qualifications  demanded  by  common  ecclesiastical  law,  since  a 
treatment  of  those  exacted  by  particular  laws  pertains  to  the 
various  institutes  whose  statutes  require  them. 

I.  Natural  law  requires  a  candidate  to  be  in  full  possession 
of  his  reason,  without  which  no  one  is  capable  of  directing  him- 
self or  others  to  their  final  end.1  Hence  infants  and  the  insane 
are  excluded.  Those  who  once  suffered  from  insanity,  even  if 
restored,  are  nevertheless  still  ineligible  by  positive  law  until  they 
obtain  papal  dispensation.2  The  election  of  such  a  person  is  not 
only  illicit,  but  ipso  jure  null.  Habitual  drunkards  are  also  in- 
eligible because  they  are  accustomed  to  deprive  themselves  of  the 
use  of  reason.  Demoniacs, — officially  so  declared — owing  to  their 
defective  liberty  and  weakness  of  mind,  are  likewise  excluded, 
but  if  freed  from  their  infirmity,  they  become  eligible — their 
restoration,  however,  cannot  be  presumed  but  must  be  proved. 
For  proof  one  year  of  health  is  regularly  sufficient,  and  even  then 
if  any  one  makes  opposition,  a  declaration  of  the  bishop  is  neces- 
sary. Epilectics  are  irregular  and  ineligible,  but  those  rarely 
subject  to  this  infirmity  are  eligible.  A  lapse  of  thirty  days  since 
a  previous  attack  suffices  to  establish  one's  recovery.3 

II.  No  person  is  eligible  for  an  ecclesiastical  office  unless 
he  is  possessed  of  such  knowledge  as  is  required  for  a  prudent 
administration  of  the  office.4  The  Council  of  Trent5  decreed  that 
no  one  could  be  elected  to  office  who  was  not  acquainted  with  the 
rudiments  of  faith  and  did  not  know  how  to  read  and  write. 
Positive  law  requires  that  all  those  promoted  to  ecclesiastical 
benefices  have  a  knowledge  of  the  latin  tongue.     Bishops  must 


1  S.  Thos.  la  2ae.  q.  1,  art.  1. 

2  Rodrig.  II,  q.  54,  a.  5;    Passerini  C.  25,  n.  6. 
3Turrecrem.  I  q.  2,  c.  2. 

4  S.  Thos.  la  2ae  q.  76,  art.  2. 
"  Sess.  23,  c.  4. 


CANONICAL    ELECTIONS  55 

have  an  adequate  knowledge  of  all  the  sacred  sciences,  and  un- 
dergo a  diligent  examination  therein  ;  they  should  be  masters, 
doctors,  or  licentiates  in  sacred  theology  or  canon  law.1  At  least 
one  half  of  the  dignities  in  cathedral  churches  should  be  con- 
ferred only  on  masters  or  doctors  in  theology,  or  licentiates  in 
canon  law.2  Pastors  must  know  how  to  distinguish  sins,  to  ex- 
plain the  gospel  and  sacraments.  Regular  prelates  are  not  re- 
quired to  have  that  knowledge  which  bishops  must  possess.  In 
the  Order  of  Friars  Preachers  a  prior  must  be  able  to  expound 
the  word  of  God  and  to  speak  latin.3 

Dispensations  from  defects  of  knowledge  required  by  natural 
or  supernatural  law  cannot  be  obtained.  The  Supreme  Pontiff 
alone  can  dispense  from  that  required  by  ecclesiastical  law,  and 
only  when  there  is  a  well-founded  hope  that  the  necessary  knowl- 
edge will  be  acquired  within  a  short  time.  A  bishop  for  a  good 
reason  may  confer  a  benefice  on  one  of  inadequate  knowledge, 
provided  that  he  himself  administer  the  benefice  until  the  one 
appointed  acquires  sufficient  knowledge.4 

III.  The  nature  of  election  in  general  requires  the  elect  to 
be  a  human  being  endowed  with  free  use  of  reason,  and  possessed 
of  a  knowledge  necessary  for  the  prudent  exercise  of  the  office  to 
which  he  has  been  elected.  These  conditions  supposed,  we  now 
logically  pass  to  the  treatment  of  those  which  pertain  to  ecclesi- 
astical elections  in  particular,  the  first  and  foremost  of  which  is 
faith,  for  faith  is  the  foundation  of  the  whole  ecclesiastical  hier- 
archy. Those  who  are  wanting  in  faith  are  either  they  who  have 
never  been  baptized,  or  they  who  baptized  have  afterwards  lost 
the  faith. 

Persons  not  baptized  are  ineligible  to  all  ecclesiastical  func- 
tions. For  not  being  members  of  the  Church,  they  are  incapable 
of  ecclesiastical  jurisdiction  and  administration,  and  hence  if 
elected  to  an  ecclesiastical  office,  such  election  would  be  invalid 
by  divine  law.  Conversion  to  the  faith,  however,  renders  them 
and  their  baptized  descendents  eligible.  Special  legislation  of 
some  religious  institutes  exclude  the  descendents  of  Jews  and 
Saracens  from  all  dignities.  Clement  VIII  ordained  that  in  the 
kingdom  of  Portugal  descendants  of  Hebrews  to  the  seventh  gen- 
eration were  ineligible  to  all  cathedral  dignities,  the  principal 
collegiate  dignities,  parishes  and  benefices.    Neophytes,  or  adults 

1  ib.  sess.  7,  c.  1,  de  ref. 

2ib. 

3  Const.  N.  507. 

'Palaus  N.  12. 


56  CANONICAL    ELECTIONS 

recently  baptized,  are  also  ineligible.  The  length  of  time  in  which 
they  remain  in  the  class  of  neophytes  is  left  to  the  judgment  of 
the  bishop,  and  during  that  time  he  can  for  no  consideration 
grant  a  dispensation  from  the  irregularity  under  which  they 
labor.1  Catechumens  are  for  a  greater  reason  ineligible.  But 
children  of  neophytes  and  catechumens  baptized  before  the  use 
of  reason  are  eligible. 

The  election  of  a  heretic,  according  to  canon  law,  is  null  and 
void.  It  can  be  validly  confirmed  by  the  Pope,  but  the  confirma- 
tion strictly  speaking  is  illicit.2  Those  also  who  defend,  favour 
or  harbour  heretics,  together  with  their  children  to  the  second 
generation,  are  ineligible.3  But  a  child  is  not  to  be  deprived  of  a 
benefice  obtained  before  his  father's  relapse  into  heresy.  Schis- 
matics, if  at  the  same  time  heretics,  being  subject  to  all  the  pen- 
alties of  heretics,  are  therefore  ineligible.  The  same  is  true  of 
schismatics  who  are  not  heretics,  and  they  remain  ineligible  even 
if  they  repent  and  become  reconciled  to  the  Church.  If  the 
schism  be  public,  the  pope  alone  can  dispense  ;  if  occult,  bishops 
can  dispense  by  virtue  of  indult  from  the  Council  of  Trent.4 

IV.  Persons  not  born  in  lawful  wedlock  are  ineligible  to  all 
ecclesiastical  orders,  dignities  or  beneficies,  unless  legitimized  by 
subsequent  marriage,  or  by  dispensation  for  the  reception  of  or- 
ders. Even  though  legitimized  in  either  of  these  two  ways,  an 
illegitimate  to  receive  the  dignity  of  the  cardinalate  must  obtain 
a  special  dispensation.5  The  children  of  invalid  marriages  con- 
tracted in  good  faith  are  considered  legitimate.  Illegitimate  re- 
ligious are  eligible  for  the  reception  and  administration  of  orders, 
but  not  for  prelacies  or  dignities,  and  neither  do  they  become  so 
by  religious  profession  except  through  dispensation.  Common 
law  excludes  them  from  prelacies  alone,  but  particular  laws  of 
the  different  institutes  exclude  them  from  many  other  offices.  In 
the  Order  of  Friars  Preachers  they  are  barred  from  offices  of 
prior,  sub-prior,  vicar,  definitor,  preacher  general,  and  master  of 
theology.6  In  the  Order  of  Friars  Minor  they  cannot  be  chosen 
general,  provincial,  guardian,  custos,  conventual  vicar,  definitor, 
procurator  to  provincial  or  general  chapters,  discreet,  commis- 
sary, visitor,  but  they  may  act  as  novice-master  or  confessor  of 

'Sanchez  II,  c.  28,  n.  11. 
2Passerini  ib.  n.  68. 

3  cap.  Quicumque — de  haereticis  in  VI. 

4  Sanchez,  Barbosa,  Garzias. 

5  cap.  Cum  in  cunctis. 
6Passerini  ib.  n.  157. 


CANONICAL    ELECTIONS  57 

nuns,  provided  there  be  no  external  jurisdiction  annexed  to  the 
office. 

The  Holy  Father  alone  can  grant  dispensations  for  the  pro- 
motion of  illegitimates  to  sacred  orders,  dignities,  and  prelacies. 
Bishops  have  faculties  to  grant  like  dispensations  for  the  recep- 
tion of  minor  orders  and  benefices  not  having  the  care  of  souls. 
Religious  superiors  by  special  provileges  can  dispense  their  ille- 
gitimate subjects  from  ineligibility  to  prelacies.  In  the  Order  of 
Friars  Preachers  only  the  general  may  grant  these  dispensations. 
The  pope  dispenses  for  the  office  of  general  in  religious  orders. 
Dispensations  granted  without  a  just  cause  by  any  superior  ex- 
cept the  pope  are  invalid;1  if  granted  by  the  pope,  they  are  in- 
deed valid,  but  he  sins  in  granting  them.2  It  is  difficult  to  say 
exactly  what  would  constitute  a  just  cause.  Very  many  are  given 
by  authors,  such  as  public  good,  avoidance  of  scandal,  knowledge, 
good  works,  necessity,  and  the  like.  If  vocals  knowingly  elect  an 
illegitimate  they  commit  a  grave  sin  and  should  be  severely  pun- 
ished, and  the  person  freely  accepting  the  prelacy  sins  mortally 
since  he  violates  a  precept  of  the  sacred  canons.  The  promotion, 
however,  is  valid,  but  he  is  held  to  renounce  it  or  to  obtain  a 
dispensation;  if  he  cannot  do  either  without  loss  of  reputation 
to  himself  or  his  relatives,  he  may  retain  it.3 

V.  In  the  fifth  place  health  and  strength  of  body  are  re- 
quired for  eligibility  to  office.  Hence  the  blind,  deaf,  or  dumb, 
those  suffering  from  a  notable  defect  in  sight,  hearing  or  speech, 
those  whom  infirmity  prevents  from  performing  the  principal 
duties  of  an  office,  those  inordinately  given  to  laziness,  sleeping 
or  eating,  those  noticeably  deformed  or  mutilated  by  absence  of 
fingers,  hands  or  feet  are  unqualified.  In  the  Order  of  Friars 
Preachers,  he  who  is  unable  to  attend  to  choral  and  other  com- 
munity exercises  cannot  be  elected  prior. 

The  election  of  an  infirm  person  is  not  ipso  jure  null,  for  we 
can  find  no  legislation  to  this  effect.  If  he  is  morally  certain  that 
his  infirmity  is  such  as  will  impede  him  in  the  exercise  of  his 
office,  the  elect  is  bound  to  refuse  his  consent,  and  to  do  all  in 
his  power  to  prevent  confirmation.4  But  if  certainty  is  wanting, 
he  may  validly  and  lawfully  accept  the  office.  If  after  confirma- 
tion infirmity  should  render  him  incompetent,  he  cannot  be  re- 
moved from  office,  but  a  coadjutor  must  be  given  to  him.    In  the 

1  cap.  Cuncta  9,  q.  3. 

2Cajetan,  dispensatio  II.  q.  96,  a.  5. 

3Rodrig.  t.  1,  q.  13,  a.  5. 

*  Passerini  ib.  n.  331. 


58  CANONICAL    ELECTIONS 

Order  of  Friars  Preachers,  generals  cannot  be  removed  by  a  gen- 
eral chapter  on  account  of  infirmity,  for  generals  can  be  removed 
only  for  those  reasons  given  in  the  Constitutions,  among  which 
infirmity  is  not  mentioned,  but  they  can  be  urged  to  resign  by 
the  definitors  of  the  general  chapter,  if  the  latter  judge  such 
resignation  to  be  expedient. 

VI.  Incorporation  into  the  ecclesiastical  state  is  required 
before  a  person  becomes  eligible  for  canonical  charges  or  func- 
tions. Those  elected  to  benefices  must  have  at  least  first  tonsure, 
otherwise  the  election  is  ipso  facto  null.1  The  presentation  of  a 
layman  to  a  benefice  is  also  null,  unless  he  become  a  cleric  before 
the  time  appointed  for  conferring  the  benefice.  Although  Saints 
Nicolas,  Severus  and  Ambrose  were  elected  to  the  episcopacy 
from  the  laity,  still  these  elections  were  by  a  special  inspiration 
of  the  Holy  Ghost.  It  is  not  necessary  to  be  in  orders  at  the 
time  of  one's  having  been  elected,  but  the  elect  must  be  qualified 
to  receive  the  required  orders  within  the  time  established  by  law. 

Religious  superiors  have  power  either  of  jurisdiction  or  do- 
minion, or  both.  Since  jurisdiction  is  not  per  se  required  in  a 
superior,  but  dominion  suffices,  it  follows  that  the  clerical  state 
is  not  per  se  necessary.  This  is  clear  from  the  fact  that  abbesses, 
though  not  enjoying  jurisdiction,  have  the  power  of  governing. 
Likewise  the  early  obbots,  though  not  clerics,  were  superiors. 

Superiors  of  religious  communities  must  be  professed  in  their 
respective  community,  otherwise  their  elections  are  invalid.2  The 
pope  alone  can  confer  abbeys  and  benefices  requiring  administra- 
tion on  those  not  professed.  This  being  penal  discipline,  is  not 
extended  to  collation  or  postulation.  Nuns  cannot  be  elected 
abbesses  or  prioresses  before  they  have  completed  eight  or  at 
least  five  years  from  profession.3  In  religious  orders  of  men, 
common  law  ordains  that  one  may  be  elected  immediately  after 
profession,  provided  he  meet  all  the  other  requirements.  In  the 
Order  of  Friars  Preachers  no  religious  is  eligible  before  he  has 
passed  twelve  complete  years  from  profession.4 

For  election  to  the  episcopate  one  must  have  been  in  sacred 
orders  for  six  months.5  Hence  a  sub-deacon  may  be  elected 
bishop.  But  an  election  of  one  not  in  sacred  orders  is  not  de  jure 
invalid,  for  in  ancient  times  members  of  the  laity  were  elected 

1  Sixtus  V.  Const.  Sacrosanctum. 

2  Cone.  Trid.  sess.  14,  c.  10  de  ref. 

3  ib.  sess.  25,  c.  7  de  regular. 

4  Valencia  1596;   Naples  1600. 

5  Cone.  Trid.  sess.  22,  c.  2. 


CANONICAL    ELECTIONS  59 

bishops  in  cases  of  necessity,  and  history  tells  us  that  Saint  Am- 
brose while  still  a  catechumen  was  raised  to  the  episcopate.  But 
since  priesthood  is  required  under  pain  of  nullity  before  a  bishop 
can  be  consecrated,  a  bishop-elect  must  be  ordained  priest  shortly 
after  his  confirmation,  for  he  must  receive  consecration  within 
three  months  from  the  date  of  confirmation  under  penalty  of 
losing  the  fruits  of  his  see,  and  should  he  neglect  it  for  another 
three  months  he  forfeits  the  see  itself.1 

Religious  superiors  must  have  received  tonsure  at  least. 
Beneficiaries  who  are  not  ordained  priests  within  a  year  of  their 
having  taken  possession  of  a  benefice,  ipso  facto  lost  it.  Deans 
of  colleges,  priors,  and  conventual  abbots  are  excepted  from  this 
general  assertion,  since  in  such  institutions  there  are  priests  by 
whom  the  care  of  souls  can  be  exercised.  Here,  as  elsewhere,  the 
particular  statutes  of  each  order  must  be  considered.  In  order  to 
possess  passive  voice  in  the  Order  of  Friars  Preachers,  one  must 
be  an  approved  confessor ;  hence  ordination  to  the  priesthood  is 
also  required. 

VII.  The  seventh  condition  requires  a  suitable  age  in  the 
person  to  be  elected.  The  age  of  seven  years  suffices  to  obtain  a 
simple  benefice,  if  the  founder  expressly  so  declare.2  The  Council 
of  Trent  laid  down  some  general  rules  on  this  point:  1°  no  one, 
even  having  first  tonsure  and  minor  orders,  can  obtain  a  benefice 
before  the  beginning  of  his  fourteenth  year  ;  2°  no  one  can  accept 
an  ecclesiastical  dignity,  unless  he  be  of  such  an  age  as  to  re- 
ceive the  required  order  within  the  lawfully  prescribed  time.  The 
age  of  twenty-one  complete  years  is  required  for  the  subdiaco- 
nate,  twenty-two  for  the  diaconate.  and  twenty-four  for  the 
priesthood.  Fourteen  years  suffices  for  a  canonry,  to  which  the 
care  of  souls  is  not  annexed.  3°  clerics  of  twenty-two  years  may 
be  elected  to  cathedral  dignities,  not  having  the  care  of  souls. 
The  canon  penitentiary  must  be  forty  years  of  age,  but  if  no  one 
in  the  diocese  meets  this  requirement,  the  bishop  may  choose  the 
one  best  qualified.  This  law  also  applies  to  collegiate  churches. 
4°  to  be  promoted  to  a  dignity  having  the  care  of  souls,  one  must 
be  twenty-five  years  of  age,  unless  the  care  of  souls  is  committed 
to  a  vicar.  5°  bishops  must  have  completed  thirty  years,  cardinal 
deacons  twenty-two,  cardinal  priests  and  bishops  thirty.  A  car- 
dinal deacon  must  have  been  a  cleric  in  minor  orders  for  at  least 
one  year,  and  must  receive  the  diaconate  within  a  year  from  his 
elevation.  A  cardinal  priest  must  be  a  sub-deacon  at  the  time  of 
his  elevation,  and  immediately  be  ordained  priest. 

1  ib.  sess.  23,  c.  2. 

:  Barbosa  in  Cone.  trid.  sess.  23,  c.  6,  n.  1. 


60  CANONICAL    ELECTIONS 

Religious  generals,  provincials  and  abbots  must  be  twenty- 
five  years  of  age.  Conventual  priors  must  have  completed 
twenty-four  years,  unless  the  care  of  souls  is  exercised  by  secular 
priests,  in  which  case  twenty  years  suffice.  Abbesses  and  pri- 
oresses should  be  not  less  than  forty  years.  Definitors  having 
the  care  of  souls  must  be  twenty-five  years  of  age,  but  for  elect- 
ors of  generals  or  provincials,  the  age  required  for  profession  suf- 
fices. In  the  Order  of  Friars  Preachers  since  no  one  acquires 
passive  voice  before  the  completion  of  twelve  years  from  pro- 
fession, and  since  no  one  is  professed  until  he  has  completed  his 
sixteenth  year,  it  follows  that  no  one  is  eligible  before  completing 
his  twenty-eighth  year.  Some  provinces  have  special  statutes  in 
this  regard. 

The  pope  alone  can  dispense  from  the  age  required  by  the 
sacred  canons.  Ordinaries  may  dispense  in  virtue  of  apostolic 
indult,  which  is  sometimes  granted  them.  Other  elections  of 
those  not  having  the  required  age  are  not  void  but  voidable.  Dis- 
pensations for  the  reception  of  orders  are  rarely  granted  except 
for  priesthood.  Bishops  in  virtue  of  indult  may  grant  a  dispensa- 
tion for  six  months,  the  Sacred  Congregation  of  Sacraments  for 
twenty  months,  the  Holy  Father  for  twenty-one  months. 

Advanced  age  that  renders  one  incapable  of  exercising  an 
office  renders  one  ineligible  for  such  an  office.1  Canon  law  fixes 
no  age  limit,  hence  this  matter  rests  with  the  judgment  of 
superiors. 

VIII.  Excommunicated  persons  are  ineligible  to  all  ecclesi- 
astical benefices,  for  the  election,  postulation,  presentation  or 
collation  of  an  excommunicate,  even  by  the  motu  proprio  of  the 
Roman  Pontiff,  is  ipso  facto  invalid.2  This  is  true  even  though 
both  electors  and  elect  are  unconscious  of  the  excommunication. 
The  election  of  one  unjustly  though  juridically  excommunicated 
is  also  invalid,  but  if  unjustly  inflicted,  the  election  is  valid. 
Should  the  censure  be  pardoned  before  the  confirmation,  the  elec- 
tion still  remains  invalid,  for  what  was  invalid  in  the  beginning 
cannot  be  validated;  in  this  case  the  confirmation  would  also  be 
invalid.  If  an  invalid  election  could  be  made  valid,  the  confirma- 
tion would  likewise  be  valid.  When  the  pope  confers  a  prelacy 
on  an  excommunicate,  the  election  is  valid,  because  it  is  pre- 
sumed that  he  previously  absolved  from  the  censure. 

Persons  absolved  from  excommunication  may  with  dispensa- 
tion retain  their  benefice  or  prelacy,  which  dispensation  can  be 

1  S.  Thos.  2a  2ae,  q.  185,  art.  4. 

2  Cap.  Postulastis. 


CANONICAL    ELECTIONS  61 

given  only  by  him  who  can  confer  the  benefice  independently  of 
a  third  party.  "Wherefore  a  bishop  cannot  dispense :  a)  when  the 
collation  of  a  benefice  pertains  to  an  inferior — unless  he  consent ; 
b)  when  the  benefice  was  conferred  by  the  pope  ;  c)  when  a  third 
has  the  right  of  presenting  a  candidate.  Those  who  knowingly 
elect  or  present  an  excommunicate  to  an  office  are  by  law  de- 
prived of  voice.  Subsequent  excommunication  does  not  invalidate 
an  election. 

IX.  Absolute  suspension  from  office  or  from  a  benefice  ex- 
cludes promotion  to  ecclesiastical  dignities.  One  suspended  from 
office,  though  not  suspended  from  his  benefice,  is  ineligible  to 
acquire  a  new  benefice.1  Suspension  from  orders  includes  ineligi- 
bility to  benefices  requiring  the  use  of  orders,  but  not  from  simple 
benefices.  Suspension  from  one  order  does  not  mean  ineligibility 
to  a  benefice  that  does  not  require  the  use  of  that  order.2  A  per- 
son suspended  from  a  benefice  may  be  elected  to  an  office  which 
is  not  a  benefice,  and  a  person  suspended  from  a  benefice  in  one 
church  may  be  elected  to  one  in  another.  But  absolute  suspension 
from  benefices  renders  one  ineligible  for  election  to  an  office. 
The  election  of  one  simpliciter  suspended  from  a  benefice  or  an 
office,  is  ipso  jure  void.  Suspension  from  an  office  does  not  ren- 
der election  to  a  new  benefice  void,  but  rather  voidable.3 

X.  Persons  under  interdict  are  unqualified  for  the  exercise 
of  passive  voice.  Whoever  violates  a  local  or  personal  interdict 
becomes  irregular,  and  therefore  ineligible  for  benefices  and  prel- 
acies. But  he  who  unconsciously  and  in  good  faith  violates  an 
interdict  is  not  irregular  nor  ineligible  for  office.  The  election  of 
one  violating  an  interdict  is  ipso  jure  null  and  void.4 

XI.  Another  impediment  that  renders  the  reception  of  ec- 
clesiastical charges  voidable  is  irregularity.  We  have  no  express 
text  to  this  effect,  but  we  can  easily  deduce  it  from  other  texts. 
For  whoever  is  excluded  from  one  thing  is  likewise  barred  from 
everything  connected  with  it.  But  irregularity  prohibits  the  re- 
ception and  exercise  of  sacred  orders,  to  which  benefices  are  an- 
nexed. It  follows  therefore  that  irregulars  are  ineligible  for  ec- 
clesiastical offices  or  benefices.  x\ll  benefices  do  not  suppose 
sacred  orders,  still  they  do  not  admit  a  canonical  impediment  to 
the  reception  and  administration  of  orders.    Irregularity  incurred 


1  Sanchez  II,  c.  2,  dub.  15. 

2  Passerini  ib.  n.  489. 

:'  Suarez.  disp.  28,  sec.  3,  n.  81. 
4  Ib.  n.  16. 


62  CANONICAL    ELECTIONS 

without  culpability  after  the  reception  of  an  order  is  not  an  im- 
pediment to  promotion  to  a  benefice  not  requiring  the  exercise  of 
the  prohibited  order.1  So  also  irregularity  impeding  episcopal 
consecration  is  not  an  impediment  for  election  to  a  religious 
prelacy.2 

Although  the  common  opinion  of  canonists  is  that  the  elec- 
tion of  an  irregular  is  ipso  pure  null  and  void,  we  prefer  the  con- 
trary, for  there  is  no  text  expressly  stating  that  it  is  ipso  jure 
null.  From  the  principle :  "whoever  is  forbidden  to  exercise  the 
acts  of  an  office,  is  likewise  forbidden  to  be  elected  to  that  office," 
we  cannot  deduce  that  such  an  election  is  ipso  facto  void,  but 
rather  that  it  is  voidable.  Nor  can  it  be  said  that  because  the  law 
prohibits  the  conferring  of  a  benefice  on  an  irregular,  such  a 
collation  would  be  ipso  jure  null  and  void.  This  latter  opinion 
is  held  by  many  authors  of  note,  among  whom  are  Innocent  III,3 
Sylvius,4  Suarez.3  And  in  its  favor  is  the  fact  that  the  pope  in 
conferring  benefices  does  not  dispense  from  irregularity,  as  he 
does  from  censures,  which  proves  that  if  irregularity  rendered  the 
collation  of  a  benefice  ipso  facto  null,  he  would  dispense  from  it.6 

Hence  it  follows  that  an  irregular  is  not  bound  in  conscience 
to  lay  aside  a  benefice,  and  to  retain  it  validly  he  needs  only  to 
obtain  a  dispensation  from  the  irregularity,  which  dispensation 
he  must  in  conscience  seek  as  soon  as  possible.  If  the  matter  is 
brought  to  the  external  forum,  he  should  be  deprived  of  his  bene- 
fice. In  freely  accepting  a  benefice,  an  irregular  sins,  being  dis- 
obedient to  the  sacred  canons  in  a  serious  matter.7 

Irregulars  may  be  elected  discreets,  electors  of  a  general  or 
provincial,  socii  or  definitors  to  general  and  provincial  chapters, 
for  these  offices  require  jurisdiction  in  the  external  forum  only, 
and  do  not  flow  from  the  power  of  orders,  nor  are  they  ordained 
to  it.  Irregularity  does  not  impede  the  power  of  jurisdiction,  nor 
its  use.  In  a  certain  sense  these  offices  could  be  called  benefices, 
still  they  do  not  per  se  or  from  their  nature  suppose  orders,  nor 
are  they  ordained  to  them,  as  are  simple  benefices,  which  are 
previous  dispositions  to  orders.8 

1  Passerini   ib.   n.  507. 

2  Suarez.  IV  de  Relig.  t.  8,  1.  2,  c.  4,  n.  25. 

3  Cap.  6  de  praeb. 

4  Excommunicato  4,  n.  4. 

5  ib.  sec.  2,  n.  35. 
"Passerini  ib.  n.  517. 
7ib. 

sSigismund  ib.  dub.  67,  n.  3;    Passerini  ib.  n.  520. 


CANONICAL    ELECTIONS  63 

XII.  Since  honesty  of  morals  is  required  for  promotion  to 
benefices  and  prelacies,  the  brand  of  infamy  renders  a  person 
ineligible  to  these  offices.1 

Infamy  of  fact,  which  is  based  on  the  rational  and  probable 
conjectures  of  a  number  of  reliable  persons,  impedes  the  worthy 
acquisition  of  ecclesiastical  charges,  but  does  not  render  canonical 
elections  or  collations  null  and  void.  For  iniquitous  persons  are 
not  even  by  natural  law  incapable  of  jurisdiction,  power  or  do- 
minion ;  on  the  contrary  Christ  Himself  said  of  the  wicked  Phari- 
sees:  "The  Scribes  and  Pharisees  have  sitten  on  the  chair  of 
Moses.  All  things  therefore  whatsoever  they  shall  say  to  you. 
observe  and  do;  but  according  to  their  works  do  ye  not."2  In 
such  elections  all  parties  concerned  sin  grievously,  but  the  elec- 
tion, confirmation,  or  collation  is  not  by  reason  of  the  infamy  in- 
valid, except  when  the  pain  of  nullity  is  ipso  jure  imposed  by  a 
particular  statute.  No  one  properly  speaking  can  dispense  from 
infamy  of  fact ;  it  is  removed  only  by  penance.  Bishops  and 
religious  prelates  can  declare  whether  it  is  infamy  or  rumor, 
whether  it  is  still  present  or  has  been  wiped  out  by  penance.3 

Infamy  of  law,  which  by  a  decree  of  law  brands  a  person  as 
infamous,  deprives  one  of  legal  repute,  that  is,  of  one's  right  to 
good  repute.  This  is  the  primary  effect,  and  from  this  proceeds 
a  secondary  effect,  which  is  ineligibility  to  legitimate  acts.  De- 
spite many  opinions  to  the  contrary,  it  seems  certain  that  the 
moment  a  crime  is  committed,  infamy  of  law  takes  away  the 
right  to,  but  not  the  possession  of,  one's  good  name  ;  and  it  seems 
too  that  the  declaratory  sentence  of  the  crime  is  to  be  referred 
to  the  moment  when  the  crime  was  committed,  so  that  from  that 
time,  elections,  collations,  or  acquisitions  of  benefices,  and  even 
all  legitimate  acts  are  invalid.  Exception  is  made  for  occult  in- 
famy and  for  acts  of  public  office  and  jurisdiction,  which  are  sus- 
tained by  title  of  public  office  in  favor  of  the  common  good.  Al- 
though one  who  has  incurred  infamy  of  law  ferendae  sententiae 
should  not  be  elected,  the  election  is  not  ipso  jure  null,  and  if 
confirmed  before  a  declaration  has  been  pronounced,  the  con- 
firmation is  lawful — though  the  delinquent  can  afterwards  be 
punished  according  to  the  gravity  of  the  crime,  even  with  priva- 
tion of  the  dignity.  If  the  infamy  is  latae  sententiae,  the  election 
is  ipso  jure  null,  but  until  juridically  pronounced  it  is  tolerated 
by  the  Church,  and  the  confirmation  prevails  under  title  of  public 

1  Cone.  Trid.  sess.  24,  c.  12. 

-  Matt,  xxiii-23. 

3  Suarez,  ib.  4,  sect.  1,  n.  11;    Sylvester  v.  infamia  n.  7. 


64  CANONICAL    ELECTIONS 

1 

office,  but  by  a  subsequent  declaration  of  the  crime,  the  election, 
confirmation,  and  all  acts  not  pertaining  to  public  office  become 
void.  Infamy  has  no  effect  in  the  elections  of  the  Order  of  Friars 
Preachers  until  a  juridical  sentence  has  been  given.1 

XIII.  Privation  of  passive  voice,  juridically  pronounced,  is 
also  an  impediment  to  canonical  promotions.  A  superior  cannot 
deprive  any  one  of  passive  voice  from  extrajudicial  knowledge, 
but  he  may  refuse  to  confirm  one  whom  he  thinks  unfit  for  an 
office.  It  is  only  per  accidens  that  electors- are  bound  in  con- 
science not  to  elect  a  person  not  judicially  deprived  of  voice,  for 
example,  if  he  is  impenitent  and  manifestly  unqualified,  or  by 
reason  of  scandal,  or  to  avoid  contentions  and  injury  to  the  com- 
mon good.  The  person  himself,  even  though  ipso  jure  but  not 
juridically  deprived  of  voice,  is  not  bound  in  conscience  to  refuse 
his  consent  to  an  election,  for  no  law  obliges  one  to  the  execution 
of  grave  penalties  before  he  has  been  sentenced  to  them.  Ex- 
ception is  made  for  cases  in  which  charity  would  bind  him  to 
refuse  his  consent.2 

XIV.  A  person,  whose  election  was  at  any  time  vetoed  ow- 
ing to  a  personal  impediment,  is  ineligible.  If  the  election  was 
cassed  by  reason  of  a  defect  either  in  the  form  or  in  the  electors, 
the  candidate  may  be  reelected  in  the  same  church  or  in  another. 
One  rejected  from  election  by  reason  of  a  personal  impediment 
contracts  infamy  of  fact.  It  does  not  follow,  however,  that  if  a 
person  be  rejected  from  one  election,  he  thereby  remains  univer- 
sally rejected  from  all  future  elections,  for  rejection  may  arise 
from  any  one  of  three  reasons :  from  a  convicted  crime,  from  a 
presumed  crime,  or  from  defect  of  age,  infirmity  and  the  like. 
The  first  two  impediments  are  wiped  out  by  penance,  the  third 
by  cessation  of  the  impediment/1  In  the  Order  of  Friars  Preach- 
ers where  superiors  are  not  accustomed  to  state  their  reasons  for 
cassing  an  election,  the  electors  should  not  elect  one  previously 
rejected  in  some  other  election,  unless  they  are  sure  that  the  re- 
jection was  occasioned  by  a  defect  in  the  form. 

XV.  If  there  are  persons  in  a  diocese  or  province  qualified 
for  an  office,  outsiders  should  not  be  elected.  But  the  election  of 
an  outsider  is  valid  unless  a  special  law  or  custom  render  it  other- 
wise, and  should  be  confirmed  if  there  be  no  other  impediment.4 
General  chapters  can  abrogate  contrary  customs  not  approved  by 

1  Passerini  n.  595. 

2  ib.  n.  606. 

"cap.  Super  eo  12  de  elect. 
4  Cap.  Cum  inter  21. 


CANONICAL    ELECTIONS  65 

apostolic  authority.1  In  the  Order  of  Friars  Preachers,  brothers 
of  one  convent  may  be  elected  prior  of  another,  and  brothers  of 
one  province  may  be  elected  prior  or  provincial  in  another  prov- 
ince, provided  they  meet  the  other  required  conditions.2 

Since  the  free  disposition  of  benefices  belongs  to  the  pope, 
he  may  confer  them  on  whom  he  will ;  other  superiors  must  fol- 
low special  laws  and  customs.  But  should  there  be  no  one  in  a 
diocese  or  province  qualified  for  an  office,  the  superior — notwith- 
standing special  laws  and  customs  to  the  contrary — should  select 
an  outsider,  for  the  necessity  of  choosing  the  one  best  fitted  for 
an  office  is  based  on  natural  and  divine  law,  against  which  positive 
law  or  custom  has  no  force.3 

XVI.  The  candidate  must  not  be  already  assigned  to  an- 
other office  or  benefice.  We  shall  consider  this  condition  later 
when  speaking  of  postulation. 

XVII.  No  person  can  lawfully  or  validly  elect  himself.4 
Neither  can  any  one  present  himself  to  a  benefice.  A  father  may 
present  his  son  and  where  there  are  several  patrons,  one  may 
present  another.  If  a  bishop  confer  a  benefice  on  a  patron,  he 
may  accept  it ;  he  may  even  request  the  bishop  to  confer  it,  for 
he  does  not  thereby  present  himself. 

There  is  only  one  instance  in  which  a  candidate  may  elect 
himself,  namely  by  consenting  to  the  election  of  himself  by 
others,  thus  increasing  the  number  of  votes  so  as  to  constitute 
a  majority.5  But  this  does  not  hold  where  the  form  of  the  chapter 
"Quia  propter,"  or  secret  ballot  must  be  observed,  according  to 
which  a  candidate  may  not  know  he  has  been  choosen  by  the 
others  before  the  publication  of  the  scrutiny,  and  a  vote  given 
outside  the  scrutiny  is  invalid.  Hence  this  exception  holds  only 
where  election  is  by  public  vote,  or  where  an  accessus  is  ad- 
mitted after  the  publication  of  the  scrutiny. 

In  addition  to  the  above  conditions  for  eligibility,  the  Con- 
stitutions of  the  Friars  Preachers  further  require  :  1°  that  a  per- 
son does  not  dwell  outside  the  Order,  even  with  the  permission 
of  superiors,  as  explained  above  in  the  chapter  on  active  voice. 
Such  a  person  cannot  be  elected  until  one  continuous  year  after 
his  return,6  and  if  he  remained  outside  without  the  permission  of 

I  Passerini  ib.  n.  656. 
*  Avignon,  1442. 

II  Passerini  ib.  n.  660. 

4  cap.  In  scripturis  8,  q.  1. 

5  Cap.  Cum  in  jure  33,  de  elect. 

6  Rome,  1580. 


66  CANONICAL    ELECTIONS 

superiors,  he  remains  ineligible  for  ten  years,  except  by  written 
permission  of  the  master  general.  Apostates  cannot  be  elected 
to  any  office  before  twenty  years  from  their  return ;  2°  that  he 
has  not  refused  the  office  of  novice-master,  and  that  he  be  not 
novice-master  at  the  time  of  his  election,  unless  with  permission 
of  the  provincial ;  3°  that  he  does  not  immediately  succeed  a 
brother-german  ;  4°  that  lie  be  not  visitor  general  or  his  com- 
panion, or  vicar  of  the  election  sent  from  another  convent  in  case 
of  necessity ;  5°  that  he  has  never  been  prior  in  the  convent  of 
election,  or  that  six  years  have  elapsed  since  that  time ;  6°  that 
in  an  episcopal  city  and  in  a  House  of  Studies  he  be  a  lector  in 
theology.  In  the  first  case  the  provincial  may  grant  a  dispensa- 
tion, in  the  second  the  general. 


CHAPTER  VI 
The  Act  of  Election 

When  an  election  becomes  necessary,  the  president  must 
summon  the  electoral  body  to  some  specified  place,  and  for  a  cer- 
tain day  within  the  legal  time-limit.  The  place  does  not  enter 
into  the  substance  of  election,  still  it  should  be  held  in  a  suitable 
place.  Episcopal  elections  must  take  place  within  the  church  or 
its  limits,  unless  there  be  a  sufficient  reason  for  holding  it  else- 
where.1 Papal  elections  held  outside  the  conclave  are  invalid.2 
If  the  majority  of  electors,  for  reasons  of  personal  convenience, 
select  a  place'  outside  the  church  limits,  the  minority  are  not 
bound  to  accede,  but  may  appeal.  If  on  the  contrary,  the  cus- 
tomary place  is  not  safe,  the  minority,  nay  even  one,  may  com- 
pel the  majority  to  choose  a  safe  place.3  It  belongs  to  the  presi- 
dent to  determine  just  what  place  within  the  limits  the  election 
will  be  held.  Should  the  electors  conduct  an  election  in  an  un- 
suitable place,  as  in  the  home  of  a  secular  power,  they  sin  mor- 
tally, or  at  least  venially,  according  to  the  degree  of  its  unfitness. 
The  election  itself  is  not  ipso  facto  null,  but  it  should  be  annulled, 
for  what  is  contrary  to  law  should  not  obtain  force.  Clandestine 
elections— those  not  held  publicly  and  collegiately—  are  repro- 
bated by  law,  and  are  null  and  void.4  They  are  not  ipse  jure  null, 
but  reprobated  in  this  sense,  that  the  clandestinity  must  be 
remedied  before  they  can  be  confirmed.  Previous  to  an  election 
in  the  Order  of  Friars  Preachers,  the  superior  asks  if  the  place 
and  time  appointed  by  him  be  agreeable  to  all,  and  the  majority 
disapproving,  the  election  does  not  proceed. 

The  time  appointed  for  holding  an  election  presupposes  the 
vacancy  of  the  office  or  benefice  in  consequence  of  death,  trans- 
fer, resignation  or  deposition.  A  prelate  cannot  be  deposed  un- 
less by  the  declaration  of  a  superior,  and  if  he  appeals,  the  sen- 
tence must  be  suspended.  Consent  to  transferral  or  resignation 
does  not  render  an  office  vacant  until  it  has  been  accepted  by  a 
superior.     Citation  of  vocals  made  before  the  prelacy  is  vacant 

'cap.  Quod  sicut  28.  de  elect. 

2  Greg.  XV.  "Aeterni  Patris." 

3  cap.  Bonae  23,  n.  1. 

4  cap.  Quia  propter. 


68  CANONICAL    ELECTIONS 

is  null,  and  does  not  revive  on  the  death  or  removal  of  a  prelate. 
Elections  cannot  be  held  prior  to  the  funeral  obsequies  of  a  de- 
ceased prelate,  unless  there  be  a  reasonable  cause,  but  whether 
an  election  thus  held  should  be  annulled  is  greatly  disputed.  Reg- 
ulars by  privilege  are  not  held  to  this  last  solemnity.1 

The  time  fixed  by  law  for  the  election  does  not  begin  from 
the  vacancy  of  the  office,  but  from  the  time  of  its  becoming 
known — the  determination  of  which  time,  rests  with  the  judg- 
ment of  the  superior.  Superiors  are  not  held  to  notify  the  elect- 
ors juridically  of  a  prelate's  death,  for  they  are  supposed  to  learn 
of  it  by  ordinary  means,  but  if  the  office  becomes  vacant  in  any 
other  way,  juridical  notification  must  be  given.2 

The  time-limit  differs  for  different  churches  and  orders, 
hence  each  should  observe  its  own  statutes  and  customs.  Com- 
mon law  allows  three  months  for  the  election  of  a  bishop,3  and 
if  not  held  within  this  time  it  devolves  on  the  superior.  Other 
benefices  should  be  provided  for  within  six  months.  If  the  chap- 
ter does  not  elect  a  bishop  within  three  months,  or  if  a  bishop 
does  not  provide  for  vacant  benefices  within  six  months  provi- 
sion in  both  these  cases  devolves  to  the  metropolitan. 

Religious  orders,  for  the  most  part,  follow  their  own  particu- 
lar statutes  in  this  regard.  In  the  Order  of  Friars  Preachers 
elections  of  conventual  priors  must  take  place  within  one  month 
from  the  knowledge  of  the  vacancy,  otherwise  they  devolve  to 
the  provincial  who  must  appoint  a  prior  within  three  months. 
A  period  of  one  year  is  given  for  a  provincial  election.  If  the 
electors  do  not  elect  or  postulate  a  provincial  within  this  time, 
and  on  the  very  day  for  which  the  electors  are  cited,  the  election 
ipso  facto  devolves  to  the  master  general.  If  a  provincial  dies 
or  is  removed  in  the  first  year  of  his  office,  and  before  Septua- 
gesima,  the  vicar  of  the  province  must  summon  the  vocals  within 
the  coming  Septuagesima,  to  a  chapter  to  be  held  after  Easter; 
if  he  dies  or  is  removed  after  Septuagesima,  this  convocation 
must  be  made  in  the  following  Septuagesima.  If  he  should  die 
or  be  removed  in  the  last  year  of  office,  the  vicar  completes  the 
term.4  In  many  provinces  the  day  assigned  for  the  election  of 
a  new  provincial  is  the  Saturday  before  the  second  Sunday  after 
the  Octave  of  Easter.5    The  election  of  a  master  general  should 


1  Lezana — Praedicatorum  7,  n.  17. 
"Passerini,  c.  13,  n.  7. 

3  cap.  Ne  pro  defectu. 

4  Rome,  1841. 

5  Const,  n.  838. 


CANONICAL    ELECTIONS 


69 


be  held  on  the  vigil  of  Pentecost.  If  a  general  dies  or  is  removed 
after  Pentecost,  but  before  or  on  the  feast  of  Saint  Michael,  a 
new  general  must  be  elected  the  following  Pentecost ;  but  if  he 
dies  after  the  feast  of  Saint  Michael  but  before  Pentecost,  the 
election  will  not  take  place  until  the  Pentecost  of  the  following 
vear — unless  other  dispositions  are  made  by  the  authority  of  the 
Holy  See,  or  unless  the  general  dies  in  the  twelfth  year  of  office.1 
The  general  himself  before  completing  his  term  gives  due  notifi- 
cation to  the  vocals  of  an  approaching  election,  except  in  case 
of  his  death,  when  the  vicar  of  the  order  issues  the  citation.2 
The  election  of  a  general  devolves  to  the  Holy  See  if  not  held  on 
the  day  fixed  by  law,  unless  grave  necessity  renders  this  impos- 
sible. Definitors  are  elected  any  time  during  the  provincial  chap- 
ter. A  socius  of  a  prior  to  a  provincial  chapter  may  be  elected 
any  time  between  Septuagesima  and  the  approach  of  the  chapter 
on  a  day  assigned  by  the  sub-prior. 

Elections  may  be  held  on  feast  days,  for  they  are  extraju- 
dicial acts.  For  a  reasonable  cause  they  may  be  celebrated  at 
night,  there  being  no  law  to  the  contrary.  Special  law  and  cus- 
toms requiring  elections  to  be  held  during  the  day  must  be 
respected. 

On  the  appointed  day  the  superior  or  president  opens  the 
electoral  assembly.  Previous  to  the  election  of  a  bishop  prayers 
and  supplications  are  offered.3  These  exercises  usually  consist 
of  a  Mass  of  the  Holy  Ghost,  reception  of  Holy  Communion  by 
all  the  electors  and  an  invocation  of  the  Holy  Ghost  by  the  anti- 
phon  "Veni  Sancte  Spiritus"  or  by  the  hymn  "Veni  Creator."  In 
the  Order  of  Friars  Preachers  a  Mass  of  the  Holy  Ghost  is 
offered  before  the  elections  of  generals  and  provincials,  and  in 
every  election  an  invocation  to  the  Holy  Ghost  is  made  by  the 
antiphon  "Veni  Sancte  Spiritus"  and  the  hymn  "Veni  Creator." 
A  Mass  of  the  Holy  Ghost  also  usually  precedes  the  election  of 
a  conventual  prior.  If  an  election  should  be  cassed  or  if  a  person 
elected  should  refuse  his  consent,  the  Mass  of  the  Holy  Ghost  is 
not  repeated  before  the  subsequent  scrutiny. 

Mass  of  the  Holy  Ghost  and  reception  of  Holy  Communion 
do  not  belong  to  the  substance  of  election — for  there  is  no  law 
nullifying  elections  not  preceded  by  these  exercises — unless 
special  statutes  prescribe  them  under  pain  of  nullity.  Neverthe- 
less, to  omit  them  is  a  grave  or  slight  sin  in  proportion  to  the 

1  lb.  n.  753. 

2  lb. 

3  Cone.  Trid.  sess.  24,  c.  1  de  ref. 


70  CANONICAL    ELECTIONS 

scandal  occasioned  thereby.  In  the  Order  of  Friars  Preachers 
electors  of  provincials,  conventual  priors,  or  prioresses  are 
obliged  to  communicate  on  the  day  of  election  under  pain  of  pri- 
vation of  voice  ipso  facto  incurred.1  Elections  not  preceded  by 
an  invocation  of  the  Holy  Ghost  and  reception  of  Holy  Commun- 
ion by  the  electors  are  to  be  annulled  if  opposition  is  made.2 

The  spiritual  exercises  over,  the  assembly  proceeds,  if  neces- 
sary, to  verify  the  credentials  of  the  electors.  It  is  the  office  of 
the  judge  appointed  by  the  statutes  or  customs  of  different  col- 
leges to  decide  whether  the  vocals  are  here  and  now  qualified  to 
vote.  In  admitting  and  excluding  them  the  judge  must  proceed 
according  to  law  and  not  from  fact  alone.  No  one  can  be  de- 
prived of  his  right  to  vote  unless  it  is  juridically  evident  that  he 
does  not  possess  the  right.  The  judge  cannot  pass  judgment  on 
credentials  coming  from  a  higher  authority,  hence  he  cannot 
examine  apostolic  letters  or  pronounce  sentence  on  their  validity 
unless  deputed  by  the  pope  to  do  so.  Opposition,  however,  can  be 
made  to  them  until  they  are  justified  before  the  one  commissioned 
to  examine  them, — the  burden  of  proof  resting  with  the  oppos- 
ing party.3  The  same  is  to  be  said  proportionately  of  the  letters 
of  other  superiors,  which  should  be  respectfully  received.  If  they 
are  given  with  condition  of  justification,  the  vocal  must  justify 
them  before  he  can  be  admitted  to  vote.  When,  however,  he  pos- 
sesses the  right  to  vote  by  virtue  of  his  letters,  he  is  presumed 
to  have  justified  them.4  Hence,  one  in  possession  cannot  be 
ejected  unless  his  opponent  furnishes  clear  proof  that  he  has  not 
justified  his  credentials.  If  the  letters  are  given  absolutely,  the 
vocal  is  freed  from  the  burden  of  proving  them,  and  the  chapter 
cannot  impede  their  execution,  unless  their  falsity  is  evident. 

In  the  Order  of  Friars  Preachers  before  the  electors  proceed 
to  the  election  of  definitors  or  to  the  celebration  of  a  provincial 
chapter,  certain  ones  are  appointed  by  the  provincial  or  vicar  with 
the  provincial  council  to  examine  the  testimonial  letters  of  those 
coming  to  the  chapter,  but  no  power  is  given  them  to  exclude 
any  one  from  active  voice.5  These  examiners  are  called  judges 
of  voice  (judices  vocem).  Their  authority  extends  only  to  the 
examination  of  the  letters  which  socii  and  priors  are  required  by 
law  to  bring  to  the  chapter.  The  power  of  excluding  those  not 
approved  by  these  judges,  rests  with  the  president  of  the  elec- 

1  Samuel,  Tract  1,  disp.  2,  n.  6. 
2Donatus  III,  Tract  1,  q.  18,  n.  11. 
;;  Passerini,  c.  14,  n.  60. 

4  Rota,  decis.  154,  n.  2.  coram  Eminentissimo  Ottobono. 

5  Rome,  1650. 


CANONICAL    ELECTIONS  71 

tion,  who  has  full  jurisdiction  in  this  regard.1  Neither  have  the 
judges  absolute  authority  in  respect  to  the  testimonial  letters, 
for  the  judgment  of  the  more  serious  difficulties  belongs  to  the 
president  and  provincial  council."  They  can  deprive  no  one  of 
voice  on  account  of  any  fault,  nor  declare  any  one  deprived  except 
priors  and  socii  for  one  of  the  three  following  reasons :  because 
they  did  not  bring  the  prescribed  testimonial  letters ;  because 
the  letters  were  false ;  or  because  they  were  not  sufficient  to 
meet  the  requirements  of  the  law.3  In  provincial  chapters  they 
can  examine  the  title  of  the  socius,  and  in  general  chapters  those 
of  the  definitors  and  electors.4  All  other  matters  concerning  the 
vocals  pertain  to  the  provincial  and  provincial  council.  The  pro- 
vincial or  vicar  can  also  examine  the  testimonial  letters  of  the 
priors  and  socii.  Once  the  electoral  body  has  been  assembled, 
messengers  may  not  be  dispatched  to  inquire  whether  the  vocals 
lawfully  possess  voice,  but  the  election  must  proceed,  and  the 
doubts — if  there  be  any — are  sent  to  the  confirming  prelate.5 

Then  follows  a  discussion  of  the  matters  pertaining  to  the 
election.  This  discussion  is  not  essential  to  the  election,  except 
where  special  statutes  so  prescribe.  The  voice  of  the  electors,  if 
not  already  attended  to,  is  now  legalized.  Then  deliberations  are 
held  concerning  the  time  and  place  of  election — in  the  Order  of 
Friars  Preachers  the  president  asks  the  vocals  if  the  time  and 
place  appointed  are  agreeable  to  them.  Next  there  takes  place 
a  frank  and  free  discussion  of  the  merits  of  the  candidates.  The 
latter  need  not  have  previously  made  known  their  candidacy, 
though  they  may  do  so.6  The  electors  are  free  to  propose  and 
sustain  the  candidates  of  their  choice.  If  any  one  wishes  to  pro- 
test against  the  election,  the  active  voice  of  the  vocals  or  the 
passive  voice  of  the  candidates,  his  protestation  or  opposition  is 
now  considered,  as  well  as  the  replies  to  the  same.  The  presi- 
dent also  makes  a  protestation  that  he  does  not  intend  to  admit 
unqualified,  or  to  exclude  qualified  vocals  from  the  election.  This 
having  taken  place,  the  president  ad  cautelam,  then  gives  general 
absolution  from  all  censures. 

These  preliminaries  over,  three  members  of  the  assembly 
worthy  of  trust  are  selected  to  examine  secretly  and  separately 

1  Passerini,  lb.,  n.  67. 

2  Sylvester — Judex,  n.  1. 

3  Passerini,  lb.,  n.  73. 

4  Ib.(  n.  70. 

5Fontana,  De  Elect,  n.  3. 
'Boudinhon,  Cath.  Ency. 


72  CANONICAL    ELECTIONS 

the  votes  of  all.  These  are  called  scrutineers,  because  they  scru- 
tinize the  votes  of  the  others.  They  are  chosen  by  the  majority 
of  the  vocals,  but  custom  can  prescribe  otherwise.  In  the  Order 
of  Friars  Preachers  the  Constitutions  provide  for  their  institu- 
tion ;  in  the  election  of  a  prior  or  socius  they  are  the  sub-prior 
and  vicar  or  the  two  oldest  vocals.1  The  same  holds  for  the  elec- 
tion of  a  provincial  elector.  In  the  election  of  definitors  of  a 
general  or  provincial  chapter  they  are  the  provincial  or  vicar  of 
the  province  together  with  the  prior  and  sub-prior  of  the  convent 
in  which  the  election  is  held,  or  at  least  two  of  these  three  ;  if 
the  prior  and  sub-prior  cannot  be  present,  then  the  two  oldest 
electors  act  as  scrutineers.  In  the  election  of  a  provincial  these 
officials  are  the  three  oldest  priors,  in  that  of  a  general  the  three 
oldest  provincials. 

The  scrutineers  are  not  to  be  elected  according  to  the  form 
of  the  chapter  "Quia  propter,"  but  by  public  suffrage  when  they 
are  not  appointed  by  the  superiors.  In  the  Order  of  Friars 
Preachers,  if  the  sub-prior  has  no  voice  or  if  one  of  those  ap- 
pointed, even  though  present,  is  impeded,  a  fourth  is  elected  by 
public  vote,2  except  in  the  province  of  Poland,  where  he  is  elected 
secretly  by  decree  of  the  general  made  at  the  request  of  the  pro- 
vincial. If  the  one  impeded  is  not  present,  then  the  three  oldest 
present  are  chosen,  this  is  also  true  when  one  of  the  oldest  does 
not  wish  to-  act.  Where  there  are  but  three  vocals,  two  scru- 
tineers suffice  ;  where  there  are  but  two,  one  suffices  ;  where 
there  is  but  one,  none  are  required.  In  all  other  cases  there  must 
be  three.  Although  the  form  of  election  requires  that  there  be 
no  more  than  three,  still  the  election  of  a  fourth,  fifth,  or  sixth 
though  useless,  does  not  vitiate  an  election.  A  general  chapter 
may  prescribed,  unless  expressly  forbidden,  that  a  fourth  be 
elected,  for  the  Lateran  Council3  forbade  that  a  fourth  be  chosen 
by  the  electors  but  not  by  superiors  having  the  right  to  make 
laws. 

The  Council  of  Trent  decreed  that  in  the  election  of  all  "su- 
periors, temporal  abbots  and  other  officials,  generals,  abbesses, 
prioresses  and  other  superioresses,"  all  should  be  elected  by 
secret  vote  and  the  names  of  the  electors  never  published,  and 
that  all  elections  otherwise  conducted  are  invalid.4  This  decree 
does  not  include  the  electors  of  bishops  and  perpetual  abbots. 


1  Const,  n.  553. 

2  Rome,  1629. 

3  cap.  Quia  propter. 

4  sess.  25  de  Regul.  c.  VI. 


CANONICAL    ELECTIONS  73 

The  practice  now  is  that  generals,  provincials  and  local  prelates 
are  elected  according  to  the  Tridentine  form,  but  other  officials 
are  sometimes  elected  by  public  suffrage.  In  the  Order  of  Friars 
Preachers,  generals,  provincials,  priors,  definitors  of  general  and 
provincial  chapters,  the  socius  of  a  prior  to  a  provincial  chapter 
and  electors  of  provincials  and  generals  are  elected  by  secret 
ballot,  other  elections  are  either  by  public  or  secret  vote — not 
however,  by  ballot,  but  with  black  and  white  beans, 

A  much  disputed  question  here  arises  whether  the  Tridentine 
decree  admits  of  auricular  scrutiny  or  whether  the  scrutiny  be 
necessarily  by  ballot.  Some  hold  that  the  decree  absolutely  for- 
bids auricular  scrutiny,  and  that  elections  not  conducted  by  bal- 
lot are  invalid.1  They  base  their  opinion  on  a  statement  made 
viva  voce  to  Cardinal  Cribello  by  Pius  V  (May  12,  1562),  in  which 
he  declared  that  the  mind  of  the  Council  prescribed  secret  vote 
by  ballot. 

•  But  the  majority  of  authors  hold  the  contrary  opinion,2 
which  seems  to  be  more  probable.  For  it  is  generally  admitted 
that  the  discipline  of  the  Lateran  Council  was  not  abolished  by 
that  of  the  Council  of  Trent.  But  the  former  council  merely 
called  for  the  appointment  of  three  trustworthy  scrutineers,  who 
should  collect  secretly  and  in  quick  succession  the  votes  of  all 
the  electors.3  The  Sacred  Congregation  of  the  Council  also  con- 
sidered an  election  secret  when  three  or  four  receive  the  votes 
of  the  others.4  The  only  extension  the  Council  of  Trent  made  to 
the  discipline  of  the  former  council  is  that  the  votes  given 
secretly  in  the  scrutiny  should  never  be  published.  But  this  de- 
cision is  not  in  the  least  repugnant  to  auricular  scrutiny,  for  it 
is  one  thing  for  the  scrutineers  to  know  the  votes  of  the  electors, 
which  the  council  does  not  forbid,  and  quite  another  thing  to 
publish  them,  which  the  council  does  forbid.  To  say  that  the 
votes  are  published  when  known  to  the  scrutineers  is  contrary 
to  the  councils  themselves,  and  also  to  the  declarations  of  the 
Sacred  Congregation  of  the  Council.  Furthermore,  the  cited  dec- 
laration of  Pius  V  is  not  sufficient  for  a  contrary  opinion,  for 
even  granted  that  it  be  authentic,  all  viva  voce  declarations  were 
recalled  by  Gregory  XV  and  Urban  VIII.  Another  proof  for  our 
opinion  is  that  the  Council  of  Trent  declared  that  elections  of 
abbesses  made  by  auricular  vote  to  a  bishop  or  superior  listening 

'Miranda  II,  q.  23,  a.  15;    Castell.,  lb.,  c.  4.  n.  62;    Donatus  III,  tract. 
1,  q.  6.  n.  7.  _       _, 

2Sigismund,  Suarez,  Garzias,  Barbosa,  Lavonus,  Sc.  Cone. 
3  cap.  Quia  propter. 
*  Suarez  IV,  t.  8,  1.  2.  n,  10. 


74  CANONICAL    ELECTIONS 

at  a  small  window  were  valid.1  And  since  the  Tridentine  decree 
includes  the  election  of  abbesses,  we  cannot  say  that  other  elec- 
tions by  auricular  vote  are  invalid. 

The  publication  of  votes  in  the  election  itself  destroys  its 
secrecy  and  makes  it  null  and  void.  This  publication  would  hap- 
pen .  1° — if  the  election  was  conducted  without  scrutineers  ;  2° — 
if  the  vocals  should  make  their  choice  known  to  the  scrutineers 
in  a  voice  so  loud  as  to  be  heard  by  the  other  capitulars ;  3° — if 
the  scrutineers  were  not  members  of  the  chapter;  4° — if  when 
announcing  the  result  they  should  make  known  the  names  of  the 
electors ;  5° — if  the  electors'  names  were  made  known  in  the  let- 
ters of  confirmation— for  election  continues  until  it  has  been  con- 
firmed. The  election  is  also  invalid  if  the  vote  of  but  one  elector 
is  made  public  in  the  election,  even  with  the  permission  of  the 
major  part.  If,  however,  the  majority  object  to  this  publicity, 
the  election  is  valid,  but  the  vote  publicly  given  is  invalid.  But  if 
the  one  thus  publicly  voting  repent  of  his  misdeed,  he  may  be 
permitted  to  take  part  in  the  same  election,  provided  he  does  not 
vote  for  the  same  candidate.2  Such  elections  are  invalid  even 
though  the  vocal  himself  or  the  chapter  be  unaware  of  the  defect. 

Elections  by  ballot  are  invalid  if  any  mark  on  a  ballot  or  any 
circumstance  connected  with  it,  will  acquaint  one  or  more  of  the 
scrutineers  with  the  name  of  the  voter.  In  auricular  elections 
scrutineers  may  know  the  names  of  electors,  but  in  elections  by 
ballot  this  knowledge  is  forbidden.  The  election  is  not  invalid 
when  one  or  more  cast  marked  ballots  unknown  to  and  without 
the  consent  of  the  chapter.  But  if  the  chapter,  aware  of  the  fact, 
withhold  its  consent,  the  election  is  neither  void  nor  voidable, 
though  the  unlawful  votes  must  not  be  computed  with  the  others. 
For  where  the  majority  elects  rightly,  and  the  minority  sins — 
even  in  the  form,  this  is  not  prejudicial  to  the  election,  unless 
especially  decreed — as  in  the  case  where  simony  enters  into  an 
election.3 

In  the  Order  of  Friars  Preachers  elections  must  be  by  secret 
ballots  received  in  a  receptacle  by  the  scrutineers,  who  count, 
read,  and  burn  them.4  Ballots  having  any  distinguishing  mark 
are  forbidden  under  pain  of  privation  of  active  and  passive  voice, 
but  if  these  votes  are  in  the  minority  and  were  cast  contrary  to 


1  lb.  c.  7. 

2Passerini,  lb.,  c.  17,  n.  14. 

3  lb.  n.  21. 

4  Bologna,  1564. 


CANONICAL    ELECTIONS  75 

the  knowledge  and  wishes  of  the  majority,  the  elections  are 
neither  void  nor  voidable,  but  the  votes  must  be  rejected.1 

It  is  directly  opposed  to  the  substance  of  election  for  one 
elector  to  cast  a  vote,  either  orally  or  in  writing,  for  another, 
unless  it  is  manifest  he  was  deputed  to  do  so  as  procurator. 
Election,  therefore,  in  its  substance  ought  to  proceed  by  votes 
secretly  given  by  the  vocals  and  secretly  received  by  the  scru- 
tineers— and  among  religious,  never  published  even  after  the 
election.  Manifestation  of  the  voters'  names,  however,  made 
outside  the  election,  provided  it  is  not  made  by  the  scrutineers, 
is  not  forbidden  either  by  the  Lateran  or  Tridentine  Councils. 
Absolutely  speaking  and  making  exception  for  particular  stat- 
utes, it  does  not  pertain  to  the  substance  of  election  to  burn  the 
ballots.  In  the  Order  of  Friars  Preachers  they  must  be  burned 
in  the  presence  of  the  chapter  before  the  result  of  the  scrutiny 
has  been  announced,  but  even  if  burned  after  this  announcement 
has  been  made,  the  election  is  valid.  They  are  also  burned  in 
papal  elections. 

Some  canonists  question  the  validity  of  elections  in  which 
there  are  but  two  or  three  vocals.  The  common  opinion  is  that 
such  elections  are  valid,  if  not  forbidden  by  particular  statutes. 
For  these  elections  are  secret  if  the  scrutineers  receive  the  votes 
of  each,  or  if  the  ballots  are  secretly  cast ;  it  is  only  accidental 
that,  owing  to  the  fewness  of  electors,  their  names  are  conse- 
quently manifested.  In  the  Order  of  Friars  Preachers  no  one 
from  the  electoral  body  present,  or  absent  through  his  own  fault, 
can  be  elected  if  there  are  less  than  five  vocals,  for  to  elect  one 
of  the  chapter  a  majority  of  one  and  a  half  is  required,  which  can- 
not be  had  when  less  than  five  are  present. 

Common  law  does  not  forbid  voting  by  proxy,  provided  the 
mandate  is  not  given  for  a  definite  person  or  persons,  because  in 
this  case  the  election  could  not  be  secret,  for  it  would  always  be 
certain  that  the  procurator  did  not  elect  nor  could  not  have 
elected  one  other  than  the  person  or  persons  named.2  An  absent 
vocal  may,  however,  insinuate  by  word  to  the  procurator  the  one 
for  whom  he  wishes  him  to  vote,  and  the  procurator  is  bound  in 
conscience  to  vote  for  the  one  thus  named,  but  if  he  votes  for 
another  he  acts  validly.  In  this  case  the  procurator  could  vote 
for  two  candidates,  casting  one  vote  for  the  candidate  named  by 
him  whose  procurator  he  is,  and  another  for  the  candidate  of 
his  own  choice.3 


1  Barcelona,  1574. 

:  Garzias  V,  c.  4,  n.  199. 

"  lb.,  n.  103. 


76  CANONICAL    ELECTION'S 

Before  the  scrutineers  begin  the  scrutiny  they  should  take  an 
oath  that  they  will  faithfully  discharge  their  duties.  But  this 
oath  is  not  essential,  and  in  many  instances  is  omitted.  The 
place  of  scrutiny  must  be  public  and  in  sight  of  the  whole  chapter, 
but  at  such  a  distance  from  the  electors  that  neither  the  electors 
talking  to  the  scrutineers,  nor  the  latter  talking  among  them- 
selves can  be  heard.  In  the  Order  of  Friars  Preachers  an  elector 
when  casting  his  ballot  may  not  put  his  hand  into  the  urn,  but  the 
casting  of  the  ballot  must  be  plainly  seen  by  the  scrutineers.1 

Recourse  to  lots  in  places  not  bound  by  the  discipline  of  the 
chapter  "Quia  propter"  does  not  render  an  election  void,  but 
rather  voidable,  and  may  be  introduced  by  custom.2  In  other 
places  elections  so  conducted  are  ipso  jure  invalid.  x\rbitrators 
may  be  elected  through  lots.s 

It  matters  not  by  what  words  the  formula  is  expressed,  pro- 
vided the  elector  expresses  his  consent  de  praesenti  for  a  certain 
person.  Three  different  formulas  are  given  by  authors :  I  elect 
N  ;  I  consent  in  N  ;  I  name  N.  All  formulas  implying  indetermi- 
nation  or  condition  are  worthless.  Useless  votes  must  be  re- 
jected, for  example,  a  ballot  naming  the  pope  for  the  office  of 
prior. 

In  auricular  scrutiny  the  electors  may  make  a  new  choice 
before  the  scrutiny  has  been  committed  to  writing,  and  even 
when  it  has  been  committed  to  writing  they  may  still  recall  their 
vote  if  the  result  has  not  been  announced,  provided  that  at  least 
two  of  the  scrutineers  have  a  distinct  recollection  of  their  former 
choice.  No  retraction  can  be  made  once  the  result  has  been  pub- 
lished.4 In  scrutiny  by  ballot  only  the  one  to  cast  his  vote  first 
may  recall  it,  and  that  only  when  his  vote  alone  is  in  the  urn, 
for  after  a  second  vote  has  been  cast  revocation  is  forbidden. 
With  the  consent  of  the  chapter  all  the  votes  may  be  burned  at 
the  instance  of  one  vocal,  and  a  new  scrutiny  taken.  Further- 
more, if  prior  to  the  announcement  of  the  scrutiny  the  majority 
wish  to  have  the  ballots  burned,  this  may  be  done  and  a  new 
ballot  taken.  After  the  publication,  no  change  is  permitted,  ex- 
cept when  it  is  certain  the  election  is  null,  in  which  case  revoca- 
tion is  lawful  provided  it  take  place  before  the  election  is  an- 
nounced in  the  name  of  the  college.5 


1  Const,  n.  557. 

-  Passerini,  lb.,  c.  28,  n.  6. 

3  Thesaurus  II,  v.  elect,  c.  2. 

4  Sigismund.  lb.  dub.  29,  n.  4;    Sylvius,  lb.  II,  n.  7. 

5  cap.  Cum  terra  14,  de  elect,  n.  4. 


CANONICAL    ELECTIONS  77 

Every  elector  physically  or  morally  present  must  vote,  for 
the  omission  of  one  such  vote  is  contrary  to  the  substance  of 
election.1  A  fourth  scrutineer  should  not  be  appointed  to  receive 
the  votes  of  the  other  three,  but  the  latter  must  attend  to  the 
votes  of  one  another.  In  the  Order  of  Friars  Preachers  the 
scrutineers  vote  first,  which  prescription  would  be  useful  in  all 
canonical  elections. 

Although  the  electors  are  in  duty  bound  to  vote  for  him 
whom  they  deem  the  most  worthy  among  those  qualified  for  the 
office  in  question,  still  they  are  not  absolutely  bound  to  take  an 
oath  to  this  effect.  Clement  VIII  and  Urban  VIII  prescribed  an 
oath  for  religious  electors,  but  the  decree  was  not  universally 
received.  In  the  Order  of  Friars  Preachers  electors  do  not  take 
an  oath.  When  an  absent  religious  elects  by  proxy,  it  is  the 
procurator  who  takes  the  oath,  but  to  do  so  he  needs  a  special 
mandate.  Outside  of  religious  institutes  either  the  absentee  or 
the  procurator  having  a  special  mandate  takes  the  oath. 

After  the  ballots  have  been  cast  they  are  counted,  and  their 
number  compared  with  the  number  of  voters.  If  they  do  not 
agree  the  ballots  are  burned  and  a  new  scrutiny  taken.  It  is 
essential  that  the  votes  of  the  electors  be  committed  to  writing.2 
It  suffices  for  one  scrutineer  to  write  the  votes,  but  in  order 
to  avoid  mistakes,  it  is  better  that  all  of  them  take  a  note  of  the 
count.  Should  there  be  a  disagreement  of  count  in  scrutiny  by 
ballot,  the  votes  should  be  read  a  second  time  and  the  true  num- 
ber ascertained,  but  in  auricular  scrutiny,  the  written  count  of 
two  obtains,  but  if  all  three  disagree  the  scrutiny  must  be  re- 
peated. Written  accounts  of  the  scrutiny  are  not  essential  to 
all  elections.3 

The  discipline  of  the  chapter  "Quia  propter"  must  always 
be  observed  except  in  cases  where  its  observance  is  impossible.* 
Hence,  when  there  are  less  than  four  vocals  the  form  prescribed 
cannot  be  observed, — for  the  scrutineers  and  the  vocals  not  be- 
ing distinct — the  election  cannot  be  known  to  the  former  with- 
out necessarily  being  made  known  to  the  latter.  Where  there 
is  but  one  elector  no  scrutiny  is  required,  for  in  one  and  the  same 
act  he  may  nominate,  elect  and  publish  the  election,  and  it  will 
suffice  if  in  the  presence  of  witnesses  or  letters  before  witnesses 
and  notary,  he  says :    In  place  of  the  college  I  elect  N.5    Where 

1  Passerini,  lb.,  n.  42. 

"  cap.  Quia  propter. 

3  Rota,  decis.  289,  n.  30,  par.  6. 

4Innoc.  lb.,  n.  6;   Donatus,  tract.  1,  q.  17,  n.  7. 

5  Panormitanus,  lb.,  c.  2. 


78  CANONICAL    ELECTIONS 

a  member  of  the  electoral  body  must  be  chosen,  and  that  body 
be  reduced  to  one,  there  can  be  no  election,  for  a  vocal  is  forbid- 
den to  elect  himself ;  but  in  this  case  he  is  considered  elected  by 
law,  and  the  only  thing  required  is  the  confirmation  of  the  elec- 
tion thus  made,1  or  that  the  confirming  prelate  appoint  him  to  the 
office  in  question.2  When  an  election  devolves  to  a  superior  he 
should  choose  one  having  the  qualities  required  by  the  college. 
Hence,  when  the  candidate  should  be  selected  from  the  college, 
and  the  college  be  reduced  to  one,  that  one  should  be  chosen. 
When  ineligibles  may  be  reinstated  by  a  superior,  then  the  one 
remaining  vocal  is  not  ipso  jure  elected,  nor  is  the  superior  bound 
to  select  him,  but  may  if  he  so  desire,  rehabilitate  the  former  to 
passive  voice  and  the  qualified  vocal  may  elect  one  of  the  num- 
ber, or  the  superior  could  rehabilitate  them  to  both  active  and 
passive  voice,  and  then  recourse  must  be  had  to  the  customary 
election.3 

When  the  electoral  assembly  consists  of  but  two  members, 
these  two  are  not  held  to  the  law  of  scrutiny,  but  may  elect  pub- 
licly without  having  recourse  to  scrutiny,  which  would  be  super- 
fluous and  useless.  If  a  member  of  the  college  must  be  chosen, 
then  one  should  renounce  his  vote  and,  if  elected  by  the  other, 
the  election  is  valid  unless  prohibited  by  special  statute.4  In  the 
latter  case  the  election  devolves  to  the  superior  who  is  bound 
to  choose  one  of  the  two.  When  there  are  three  electors  they 
are  not  bound  to  observe  the  discipline  of  the  chapter  "Quia  prop- 
ter," except  to  elect  by  ballot  when  prescribed  by  special  law,  and 
not  to  publish  the  names  of  the  electors  outside  of  the  college.5 

We  have  said  above  that  after  all  the  votes  had  been  cast 
they  are  counted,  and  this  is  true  even  when  all  are  given  for  the 
same  person,  since  it  is  absolutely  essential  that  the  number  of 
votes  tally  with  the  number  of  electors.  In  former  times,  the 
candidate  who  had  obtained  the  votes  of  the  more  numerous  and 
sounder  part  (major  et  sanior  pars)  of  the  college,  was  declared 
elected.  Although  it  was  presumed  that  the  more  numerous  part 
was  the  sounder  part  also,  still  contrary  proof  was  admitted,  and 
this  appreciation,  necessitating  a  comparison  not  only  of  the  num- 
ber of  votes  but  also  of  the  merits  and  zeal  of  the  electors,  led 
to  endless  discussions  and  dissensions.     But  the  subsequent  use 


1  Cuth.  IV,  de  elect,  n.  3. 
'Sigismund,  lb.,  dub.23,  n.  8. 

3  Passerini,  lb.,  n.  70. 

4  Sigismund,  lb.,  d.  23,  n.  5. 

5  Passerini,  lb.,  n.  75. 


CANONICAL    ELECTIONS  79 

■of  the  secret  and  written  ballot  proved  an  efficient  remedy  to 
these  difficulties  by  assuring  the  election  to  the  candidate  who 
obtains  an  absolute  majority  ofttwo-thirds.  When  the  electors 
are  odd  in  number  a  gain  of  one  vote  constitutes  a  majority ;  if 
the  number  be  even,  a  gain  of  two  votes  is  required.1  In  the 
Order  of  Friars  Preachers  if  the  candidate  is  a  member  of  the 
chapter  and  present  therein,  or  if  absent  through  his  own  fault, 
he  must  receive  a  gain  of  two  votes  to  ensure  the  majority,  but 
if  legitimately  impeded  from  being  present,  an  absolute  majority 
is  sufficient,  just  as  in  the  election  of  an  outsider.2  Vocals  absent 
through  their  own  fault,  or  those  who  renounce  their  vote,  are 
not  to  be  computed  in  the  number  of  electors,  but  contemned 
vocals  must  be  numbered  in  calculating  the  majority.  Alterna- 
tive, uncertain,  useless  and  blank  votes  are  not  to  be  taken  into 
account,  for  whoever  casts  such  votes  is  considered  to  have  for- 
feited his  right  for  that  ballot.3  When  two  or  more  candidates 
receive  the  same  number  of  votes,  the  choice  of  candidates  is 
made  by  him  to  whom  the  chapter,  law  or  custom  commits  this 
office.  Sometimes  the  confirming  prelate  may  choose  the  one 
he  thinks  best  fitted  for  the  office  in  question.  Should  no  candi- 
date obtain  an  absolute  majority,  another  scrutiny  is  held,  and 
so  on  until  a  decisive  vote  is  reached.  However,  special  statutes 
can  prescribe,  and  in  some  cases  have  prescribed  various  rem- 
edies for  useless  balloting,  for  example,  that  after  three  rounds 
of  fruitless  balloting  the  election  shall  devolve  upon  the  superior ; 
or  that  in  the  third  round  the  electors  can  vote  only  between  the 
two  most  favored  candidates ;  or  that  in  the  fourth  round  a  rel- 
ative majority  shall  suffice, — as  in  congregations  of  nuns  under 
simple  vows.4 

When  the  final  vote  has  been  counted  and  committed  to 
writing,  the  result  should  be  officially  announced  to  the  electoral 
body  by  the  presiding  officer  or  by  one  deputed  thereto.5  This 
act  is  also  essential.  The  time  within  which  it  should  take  place 
is  left  to  the  judgment  of  the  superior,  provided  there  be  no  defi- 
nite time  prescribed  by  special  statute.  The  vocals  are  not 
obliged  to  remain  in  the  chapter  while  the  votes  are  being  read. 
Outsiders  may  be  present  when  the  announcement  is  made.  The 
first  scrutineer  or  the  one  appointed  by  custom  or  statute,  then 

1  Boudinhon,  lb., 
-Avila,  1895. 

Sigismund,  lb.,  d.  9,  n.  11. 
*  Boudinhon,   lb. 
'  cap.  Quia  propter. 


80  CANONICAL    ELECTIONS 

announces  accurately  how  many  votes  were  cast  for  each  can- 
didate, and  this  done,  he  then  in  a  clear  voice  in  his  own  and  in 
the  name  of  the  chapter,  formally  elects  the  candidate  who  ob- 
tained the  required  majority  of  votes. 

The  decree  of  election  is  next  drawn  up,  and  dispatched  to 
the  confirming  prelate.  This  decree  is  a  written  document  con- 
taining a  complete  account  of  the  electional  proceedings.  It  is 
commonly  held  that  it  does  not  enter  into  the  substance  of  elec- 
tion. Castellini  says  he  knows  of  many  instances  when  the  pro- 
cess of  elections  in  the  Order  of  Friars  Preachers  was  announced 
orally  to  the  superior  by  one  or  more  of  the  scrutineers.1  Com- 
mon law  requires  that  "instructors"  accompany  the  decree  in 
order  to  explain  its  details,  but  the  majority  of  authors  hold  that 
this  applies  only  to  elections  which  are  to  be  confirmed  by  the 
Apostolic  See.  The  decree  is  ordinarily,  but  not  necessarily, 
signed  by  all  the  electors.  In  the  Order  of  Friars  Preachers  the 
scrutineers  in  presence  of  the  whole  chapter  sign  and  seal  the 
document,  which  is  then  sent  as  soon  as  possible  to  the  superior 
by  a  messenger.  No  vocal  is  permitted  to  convey  the  document, 
under  pain  of  privation  of  active  and  passive  voice,  and  of  the 
punishment   imposed  on  those  journeying  without   permission.2 

Before  passing  to  the  next  chapter  we  must  say  a  few  words 
about  those  two  exceptional  modes  of  election,  namely  compro- 
mise and  quasi-inspiration. 

Compromise  occurs  when  all  the  electors  confide  the  election 
to  one  or  several  ecclesiastics,  either  members  of  the  chapter  or 
strangers,  and  ratify  in  advance  the  choice  made  by  the  arbitra- 
tor or  arbitrators.  This  method  was  excluded  from  the  elections 
of  regulars  by  the  Council  of  Trent.3  It  is  not  necessary  that 
the  chapter  appoint  the  arbitrators  but  it  may  commission  others 
to  do  so.4  If  each  one  is  given  absolute  power  of  electing,  they 
are  presumed  to  have  been  elected  in  solidum.5  The  compromise 
is  conditional  or  absolute  according  as  the  arbitrators  are  or 
are  not  restricted.  For  the  latter  the  unanimous  consent  of  the 
chapter  is  required,  for  the  former  that  of  the  majority  suffices.6 

All  the  conditions  for  election  in  general  must  be  complied 
with  in  election  by  compromise,  for  what  is  necessary  to  the 

1  c.  12,  n.  25-30. 

2  Valencia,  1647. 

3  sess.  25,  de  Regul.  c.  6. 

4  Miranda,  II,  q.  33,  a.34. 

5  Jo.  Cald.  Conf.  6. 

6  Passerini,  lb.,  c.  22,  n.  20. 


CANONICAL    ELECTIONS  81 

genus  is  necessary  to  the  species.  Arbitrators  cannot  be  elected 
except  by  those  electors  collegiately  united,  who  should,  and 
would  and  can  conveniently  be  present.  In  limited  compromise 
they  must  be  elected  by  secret  vote. 

The  arbitrators  cannot  exceed  the  power  granted  them.  This 
power  may  be  revoked  by  the  majority  of  the  chapter  re  adhuc 
integra.  When  the  arbitrators  elect  by  scrutiny,  their  faculty 
may  be  revoked  as  often  as  the  scrutiny  is  repeated,  provided  the 
faculty  was  not  bestowed  as  a  favor  or  honor,  for  in  this  case  it 
is  presumed  to  have  been  an  irrevocable  gift.1  Tacit  revocation 
is  not  sufficient,  but  if  the  chapter  should  elect  re  adhuc  integra 
the  election  would  prevail. 

An  arbitrator  cannot  elect  himself,  if  he  wishes  to  be  a  can- 
didate he  must  renounce  his  office.2  If  the  mandate  permits  one 
of  the  arbitrators  to  be  elected,  then  half  the  number  of  votes 
together  with  his  consent  will  ensure  his  election.3  In  election 
by  secret  scrutiny,  not  according  to  the  chapter  "Quia  propter," 
no  one  can  nominate  himself  in  the  scrutiny,  but  after  the  votes 
have  been  announced  he  may  add  his  own  to  that  already  given 
to  him,  by  recalling  it  from  another,  provided  that  his  vote  did 
not  constitute  a  majority  for  the  other.4  Where  the  form  "Quia 
propter"  obtains,  the  consent  of  a  candidate  is  never  permitted 
to  increase  the  number  of  votes  cast  for  him.  If  the  mandate  for- 
bids the  election  of  an  arbitrator,  such  an  election  would  be  null ; 
if  it  contains  no  clause  on  this  point  he  may  be  elected,  provided 
the  mandate  does  not  call  for  an  unanimous  vote. 

Should  the  arbitrators,  even  in  good  faith,  elect  an  unworthy 
candidate,  the  power  of  electing  returns  to  the  chapter,  if  the 
lawfully  prescribed  time  for  the  election  has  not  already  expired.5 
The  same  is  true  when  the  candidate  refuses  his  consent.  But  if 
the  aforesaid  time  expires  and  they  have  elected  either  an  un- 
worthy candidate  or  no  candidate,  the  election  devolves  upon  the 
superior. 

When  the  arbitrators  elect  an  unworthy  candidate,  they  and 
not  the  electors  are  punished  with  suspension  for  three  full  years 
from  all  benefices  possessed  in  the  church  in  which  the  election 
took  place.  This  punishment  applies  only  in  the  elections  of  bish- 
ops and  their  superiors  and  not  when  an  arbitrator  is  a  bishop. 

Mb.,  n.  30. 

s  Sylvius,  lb.,  II,  q.  16,  n.  19. 

3  cap.  In  jure  33,  de  elect. 

4  Sylvester,  electio  2,  n.  2. 
Mb.,  n.  26. 


82  CANONICAL    ELECTIONS 

When  an  arbitrator  is  likewise  a  confirming  prelate  he  may 
by  one  and  the  same  act  elect  and  confirm  a  candidate.1 

Inspiration,  by  which  a  person  may  be  elected  to  an  ecclesi- 
astical office,  is  twofold.  The  one  is  called  true  inspiration  by 
which  a  person  is  chosen  by  God  through  revelation  properly  so 
called,  as  in  the  case  of  Saint  Matthias.  The  other  is  quasi  or 
common  inspiration,  and  is  supposed  to  exist  when,  with  no  spe- 
cial preceding  discussion  on  a  certain  person,  the  electors  as- 
sembled in  the  electoral  chamber  unanimously  and  at  the  same 
time,  with  no  contradiction  or  hesitation,  immediately  proclaim 
a  person  elected.  For  such  unanimous  consent  is  presumed  to 
have  come  from  the  Holy  Ghost — the  Author  of  unity  and  con- 
cord. The  customary  general  preceding  discussion  is  not  con- 
trary to  election  by  quasi-inspiration.2 

If  an  elector  is  absent  by  reason  of  his  having  been  con- 
temned there  can  be  no  election  by  quasi-inspiration,  even  if  after 
the  election  he  should  give  his  consent,  for  such  consent  is  pre- 
sumed to  have  been  prompted  by  the  influence  of  the  others  and 
not  by  the  Holy  Ghost.  Neither  can  there  be  election  by  quasi- 
inspiration  if  one  should  recall  his  vote  before  the  publication 
of  the  scrutiny,  because  the  consent  would  be  no  longer  unani- 
mous.3 A  capitular  may  be  elected  by  quasi-inspiration.  if  he 
consents  to  the  election  thus  made,  and  this  even  if  he  had  voted 
for  another,  because  the  vote  of  the  elect  is  not  computed,  and 
hence  does  not  destroy  the  required  unanimity.4 

Confirmation  is  not  required  when  it  is  evident  that  the  elec- 
tion was  inspired  by  God,  as  in  the  case  of  Saints  Ambrose  and 
Nicholas.  It  pertains  to  the  superior  to  decide  this  point,  and 
the  elect  cannot  assume  office  without  his  knowledge  and  per- 
mission. But  the  practice  of  today,  as  Ave  stated  on  an  earlier 
page,  is  that  the  Church  will  not  ratify  this  method  of  election,, 
knowing  well  that  if  the  electors  were  prompted  by  the  Holy 
Ghost,  they  will  not  hesitate  to  confirm  their  choice  by  secret 
vote, — the  Holy  Ghost  still  moving  and  inspiring. 

1  Passerini,  lb.,  c.  22,  n.  52. 

2  Sylvester,  n.  28. 

3Hostiensis,  de  elect.  "Qualiter  facienda." 
4  Tabien.,  v.  electio  3. 


CHAPTER  VII 
Postulation 

In  ancient  law  there  was  but  very  little  difference  between 
the  election  and  postulation  of  ecclesiastical  prelates,  for  these 
words  were  used  promiscuously.1  Today  they  differ  greatly,  for 
they  imply  essentially  distinct  modes  of  providing  for  widowed 
churches.  By  election  a  candidate  acquires  a  certain  right,  and 
his  confirmation  is  an  act  of  justice  ;  by  postulation  he  acquires 
no  right,  and  his  confirmation  is  a  matter  of  favor.  Election 
once  concluded  cannot  be  recalled,  postulation,  on  the  contrary, 
is  always  subject  to  recall  until  it  has  been  presented  to  the  supe- 
rior. A  candidate  elect  is  worthy  and  eligible,  a  postulate  is 
worthy  but  not  eligible  because  he  has  an  impediment.  If  some 
of  the  vocals  elect,  and  others  postulate  a  candidate,  in  order  that 
the  postulation  prevail  a  majority  of  two-thirds  is  necessarily 
required.  Hence  postulation  is  defined  as  a  petition  of  the  chap- 
ter presented  to  a  competent  ecclesiastical  superior  that  he  pro- 
mote to  a  vacant  ecclesiastical  office  a  person  who  is  debarred 
from  election,  not  on  account  of  a  personal  defect,  but  be  reason 
of  some  canonical  impediment,  which  does  not  render  him  abso- 
lutely ineligible.2  Since,  therefore,  these  two  modes  of  ecclesi- 
astical provision  agree  in  this,  that  both  pertain  to  the  chapter, 
yet  differ  essentially  in  the  aforesaid  points,  it  now  remains — 
having  exposed  the  method  of  election — to  speak  briefly  of  the 
other  method  which  is  postulation. 

Postulation  is  either  solemn  or  simple.  The  former  is  that 
defined  in  the  preceding  paragraph,  and  admitted  by  the  superior 
has  the  force  of  a  confirmed  election.  The  postulate,  therefore, 
after  confirmation  acquires  the  same  right  as  though  he  had  been 
elected  and  confirmed.  The  latter  is  merely  a  request  made  to 
a  superior  to  obtain  his  consent  for  the  promotion  of  a  candidate 
subject  to  his  jurisdiction,  e.  g.,  a  religious. 

Solemn  postulation — differently  from  simple— ought  to  be 
made  by  the  electors  collegiately  assembled,  observing  the  can- 
onical forms  and  statutes,  and  within  the  lawfully  prescribed 
time  for  election.    It  is  safer,  though  not  necessary,  to  observe 

3  cap.  Litteras  dist.  63. 

2D.  Antoninus,  111.,  tit.  19,  c.  3. 


84  CANONICAL    ELECTIONS 

the  form  of  scrutiny,  except  in  religious  orders,  where  it  must 
be  secret  ballot.  An  absolute  majority  of  votes  constitutes  a 
valid  postulation.1  Though  it  rarely  or  never  occurs  without  a 
previous  election,  still  it  does  not  depend  upon  election.  By 
special  privilege — though  contrary  to  common  law — one  candi- 
date can  be  elected  and  another  postulated  at  the  same  time. 

The  general  rule  in  regard  to  active  voice  is  that  they  who 
are  qualified  to  elect,  can  also  postulate,  for  postulation  is  acces- 
sory to  election  and  necessarily  connected  with  it.  The  postula- 
tion must  be  presented  to  the  candidate  within  the  prescribed 
time-limit,  and  the  latter  must  give  or  refuse  his  consent  within 
one  month,  otherwise  he  is  presumed  to  have  dissented.  He  can 
only  give  conditional  consent,  and  although  he  can  withhold  it 
from  the  chapter,  he  cannot  do  so  against  the  wishes  of  the  Su- 
preme Pontiff. 

In  regard  to  passive  voice  the  general  principle  is  that  who- 
ever is  qualified  for  election  cannot  be  postulated.  All  those  are 
eligible  for  postulation  who  have  an  impediment  from  which  the 
Holy  See  can  and  will  dispense.  If  the  impediment  be  doubtful, 
one  can  be  elected  and  postulated,  and  this  done  the  candidate 
then  chooses  the  method  by  which  he  wishes  to  be  promoted  to 
the  vacant  office.  Among  those  unqualified  for  postulation  are 
infants,  insane,  and  women,  the  offspring  of  an  incestuous  union, 
those  less  than  twenty-seven  years  of  age  (if  it  be  a  question  of 
episcopal  postulation)  and  bishops  who  entered  the  religious 
state  on  account  of  having  committed  some  crime.  The  Holy 
See  usually  grants  dispensations  from  all  other  canonical  impedi- 
ments, hence  those  so  unqualified  may  be  postulated.  Those 
qualified  for  simple  postulation  are  cardinals,  priests  and  dea- 
cons, regulars,  prelates  inferior  to  bishops  and  subject  to  them. 
Those  who  knowingly  postulate  an  unworthy  candidate  lose,  ipso 
facto,  the  right  of  postulating  and  electing  for  that  election. 

Postulation  should  be  made  to  the  superior  in  whose  power 
it  is  to  dispense  from  the  impediment.  A  superior  is  bound  to 
admit  postulation  made  by  the  majority  of  vocals,  if  necessity  of 
the  church  and  the  common  good  require  it,  and  should  he  refuse, 
a  higher  authority  may  compel  him  to  do  so.2  Before  its  admis- 
sion the  postulate  cannot  administer  the  office  for  which  he  was 
postulated,  and  should  he  do  so  the  postulation  is  thereby  ipso 
jure  null  and  void. 


1  Hostiensis,  de  post.  n.  10. 

2  Passerini,  lb.  c.  24,  n.  48. 


CANONICAL    ELECTIONS  85 

The  same  elector  cannot  at  the  same  time  elect  and  postulate 
different  persons.1  If  one  candidate  is  elected  by  one-third  of 
the  electors,  and  another  postulated  by  two-thirds,  the  postula- 
tion  prevails,  and  the  election  must  be  cassed ;  if  the  postulate 
receives  but  one  less  than  two-thirds,  the  election  must  be  con- 
firmed.2 But  if  the  candidate  postulated  by  two-thirds  majority 
be  unworthy,  then  both  the  postulation  and  election  are  void, 
except  when  the  majority  of  those  two-thirds  knowingly  postu- 
lated said  candidate,  in  this  case  the  election  must  be  confirmed. 
Passerini  says  the  discipline  of  the  chapter  "Scriptum"  is  partic- 
ular legislation,  and  that  whenever  a  person  is  elected  by  the 
majority  of  vocals,  the  election  should  be  confirmed,  but  if  the 
one  postulated  receive  the  majority  the  superior  may,  if  he  sees 
fit,  reject  the  postulation,  unless  necessity  or  the  common  good 
require  him  to  admit  it. 

Besides  this  postulation  ex  jure,  there  is  also  postulation 
ex  privilegio,  which  is  that  conceded  to  the  Order  of  Friars 
Preachers  by  Alexander  IV,  March  16,  1257,  and  by  virtue  of 
which  three  concessions  are  given  over  and  above  those  granted 
by  common  law:  1°  the  vocals  may  elect  one  and  postulate  an- 
other at  one  and  the  same  time  ;  2°  they  may  postulate  several 
persons  ;  3°  they  may  postulate  an  eligible  candidate.  The  supe- 
rior may  admit  any  one  of  those  postulated.  But  this  postulation 
holds  only  where  there  is  also  an  election,  for  the  decree  expressly 
states  that  it  is  to  be  admitted,  if  for  any  reason  the  election  is 
not  confirmed.  This  privilege  does  not  abolish  that  which  com- 
mon law  concedes,  namely,  that  if  the  vocals  do  not  wish  to  elect 
they  may  have  recourse  to  postulation,  for  a  privilege  does  not 
take  away  what  the  common  law  denies.3  But  in  case  they  do 
not  wish  to  elect,  they  must  observe  the  laws  of  the  sacred  canons 
concerning  postulation— if  they  resort  to  postulation. 

This  privilege  comprehends  only  the  elections  of  conventual 
priors  and  provincials.  The  postulation  must  be  by  secret  ballot, 
and  on  the  same  ballot  the  vocal  first  writes  the  name  of  the  per- 
son he  wishes  to  elect  by  the  words:  I  elect  N.  (Eligo  N.),  and 
then  writes  the  name  of  the  postulate  after  the  words :  I  postu- 
late N.  (Postulo  N.).  Then  there  should  be  observed  all  those 
acts  prescribed  to  be  observed  in  the  scrutiny  of  election.  In  the 
decree  of  election  the  scrutineer  should  write :  Ego  N.  eligo  N. 
et  postulo  N.     A  majority  of  votes  suffices  for  postulation,  ex- 

1  De  post,  in  VI. 

-cap.  Scriptum  40,  de  elect. 

3  Passerini,  lb.  n.  65. 


86  CANONICAL    ELECTIONS 

cept  when  the  postulate  is  a  member  of  the  chapter,  when  a  gain 
of  two  or  one  and  a  half  votes  is  required  (Bologna,  1564)  if  he  be 
present  or  not  legitimately  absent. 

As  said  above,  postulation  can  be  admitted  only  when  the 
election  for  some  reason  is  not  confirmed.  The  election  is  there- 
fore to  be  examined  first,  for  postulation  is  never  admitted  by 
virtue  of  an  inequality  of  suffrage  alone,  but  election  should 
always  be  preferred  unless  there  be  a  good  reason  to  the  con- 
trary. If  it  happen  that  the  election  is  not  confirmed,  the  supe- 
rior is  not  bound  to  admit  postulation,  for  the  privilege  grants 
the  faculty  but  does  not  impose  the  necessity  of  admitting  postu- 
lation. And  since  postulation  is  based  on  favour  and  not  on  jus- 
tice, the  person  postulated  acquires  no  right  to  the  prelacy, 
though  the  practise  of  the  order  is  that  the  superior  usually 
admits  one  of  the  postulates  when  he  cannot  reasonably  confirm 
the  election. 

If  an  election  is  null  from  defect  of  form,  postulation  is  like- 
wise invalid,  for  the  form  of  both  is  one  and  the  same.  Postula- 
tion presupposes  an  election  canonical  in  appearance,  but  not 
necessarily  an  absolutely  valid  election.  Custom — which  is  the 
best  interpreter  of  laws — has  always  understood  and  still  under- 
stands this  privilege  to  be  such,  that  where  no  one  is  canonically 
and  lawfully  elected,  postulations  ex  privilegio  are  null  and  void.1 

1  Passerini,  lb.  n.  74. 


CHAPTER  VIII 
Defects  in  Election 

The  essence  of  election  not  only  requires  lawful  qualification 
of  active  and  passive  voice  and  observance  of  canonical  form,  but 
also  that  it  be  absolutely  free;  in  other  words,  the  freedom  of 
the  electors  must  not  be  impaired  by  unjust  laws,  fraud,  threats, 
or  excessive  fear.  In  order,  therefore,  to  give  a  complete  notion 
of  canonical  election,  we  must  show  how  these  vices  are  opposed 
to  it  and  render  it  either  void  or  voidable. 

I.  In  regard  to  the  persons  eligible,  election  cannot  be  re- 
stricted to  one  specified  candidate  by  any  law,  statute,  or  precept, 
for,  such  an  ordination  is  unjust  and  the  electors  are  not  held  to 
obey  it.  and  should  they  elect  another  worthy  candidate,  he 
must  be  confirmed.  The  nature  of  election  requires  a  free  choice 
of  one  in  preference  to  another.1  The  common  opinion  of  canon- 
ists is  that  the  electors  should  have  a  choice  of  at  least  three,  but 
this — though  reasonable — is  not  absolutely  essential.  Many  de- 
crees of  the  Sacred  Congregations  state  that  elections  cannot  be 
restricted  to  less  than  four  or  five.  All  admit,  however,  that  if 
a  restriction  is  made  with  the  unanimous  consent  of  the  electors, 
it  is  not  contrary  to  liberty.  So  also  if  there  should  be  but  two 
candidates  fully  qualified,  the  electoral  choice  may  be  restricted 
to  these  two,  for  such  objective  restrictions  come  from  divine 
law,  which  prohibits  the  election  of  an  unworthy  candidate. 
Some  canonists  even  say  that  an  election  could  be  restricted  to 
one  for  the  same  reason.2  This  has  happened  in  the  Order  of 
Friars  Preachers,  where  at  one  time  there  was  but  one  brother 
qualified  for  the  provincialate  of  Calabria,  the  general  notified 
the  electors  that  if  they  did  not  elect  this  brother,  he  would  ap- 
point an  outsider.  But  such  restrictions  give  rise  to  many  diffi- 
culties, and  should  be  made  with  the  greatest  prudence  ;  and  if 
another  than  the  one  designated  should  be  elected,  he  must  be 
confirmed,  unless  his  unfitness  be  clearly  proved.3 

Restricted  elections  are  not  ipso  jure  null,  for  the  electors 
can  disregard  the  restriction  and  elect  another.    Even  if  through 


1  S.  Th.  la  2ae,  qu.  13,  art.  12. 

2  Donatus,  tract.  I,  q.  10,  n.  13. 
3Passerini,  lb.,  c.  2,  n.  17. 


88  CANONICAL    ELECTIONS 

fear  the  vocals  unwillingly  elected  a  specified  candidate,  the  elec- 
tion is  valid — since  fear  does  not  destroy  liberty — and  can  be 
annulled  only  at  the  instance  of  the  electors.  If  they  voted  freely, 
the  election  is  neither  void  nor  voidable.  Neither  can  elections 
be  restricted  to  a  certain  class  in  such  a  way  that  the  vocals  could 
not  elect  one  of  another  if  they  so  wished.  General  chapters  with 
the  consent  of  the  subjects  or  by  apostolic  authority  can  estab- 
lish alternatives,  in  virtue  of  which  a  candidate  must  be  chosen 
from  one  nation  for  this  election,  and  from  another  for  the  next. 
Elections  contrary  to  these  alternatives  are  not  ipso  jure  null — 
unless  expressly  so  ordained — but  voidable  at  the  petition  of  the 
vocals.1  The  Roman  Pontiff  can  restrict  an  election  to  one  and 
under  pain  of  nullity,  for  the  right  of  election  belongs  to  the 
Holy  See. 

In  the  Order  of  Friars  Preachers  provincials  in  case  of  neces- 
sity can  restrict  the  electors  to  not  less  than  three  candidates, 
but  not  to  the  exclusion  of  others  ;  for  should  they  elect  another, 
the  provincial  must  confirm  him,  if  he  has  the  necessary  qualifi- 
cations.2 Pius  V  decreed  that  if  a  general  or  provincial  of  the 
Order  of  Friars  Minor  restrict  the  electors  to  three  or  four  can- 
didates, he  shall  be  deprived  of  office.3  Generals  in  reforming 
provinces  or  congregations  may,  by  special  privilege,  restrict  the 
vocals  to  three  or  four  candidates  under  pain  of  cassation,  but 
this  privilege  is  not  conceded  to  the  office,  and  must  be  obtained 
by  each  newly  elected  general  if  need  arises. 

II.  In  respect  to  the  electors  freedom  of  election  is  im- 
paired when  they  are  deprived  of  voice,  their  number  increased 
or  diminished. 

No  superior,  the  pope  excepted,  can  deprive  a  lawful  capitu- 
lar of  active  voice,  unless  he  proceeds  according  to  the  prescrip- 
tions of  common  law.  The  pope  for  a  just  cause  can  licitly  and 
validly  recall  this  concession,  and  even  without  a  just  cause,  his 
revocation  would  be  valid.  In  the  Order  of  Friars  Preachers  no 
vocal  can  be  lawfully  deprived  of  voice  within  a  month  previous 
to  any  election,  except  for  reasons  given  in  the  chapter  on  grave 
faults.  A  provincial's  office  expiring  during  the  vacancy  of  the 
generalship,  or  after  the  beginning  of  a  year  fixed  for  a  general 
chapter  for  which  he  is  a  definitor,  continues  until  the  general 
is  elected,  or  the  chapter  has  been  held.4 


1  lb.,  n.  60. 

2  Bologna,  1564. 

3  Miranda  II,  q.  23,  a.  21. 
4Castell.,  c.  5,  n.  781. 


CANONICAL    ELECTIONS  89 

Superiors  cannot  increase  the  number  of  electors  by  sending 
an  outsider  to  an  election,  unless  they  have  power  to  give  ap- 
probation for  active  voice  to  persons  not  possessing  it.  In  the 
Order  of  Friars  Preachers  this  may  be  done  in  two  cases,  as  we 
have  stated  above  when  treating  of  the  conditions  for  active 
voice.1  When,  therefore,  the  number  of  electors  is  fixed  by  com- 
mon law.  no  one  inferior  to  the  Pope  may  increase  or  lessen  it ; 
when  it  is  not  determined,  it  may  be  increased  or  lessened  by 
those  who  have  this  right  from  common  law.  We  have  already 
seen  that  superiors  of  the  Order  of  Friars  Preachers  cannot 
validly  assign  brothers  with  active  voice  to  a  convent  from  two 
months  before  the  prior's  term  of  office  expires  until  the  election 
and  confirmation  of  a  new  prior.2  Moreover,  if  a  brother  has 
been  assigned  to  a  convent  two  months  previous  to  an  election, 
this  assignation  must  be  made  known  to  the  convent.  Superiors 
are  forbfdden  to  make  simulated  or  fictitious  assignations.  There 
are  some  exceptions  to  this  discipline,  but  they  too  have  already 
been  sufficiently  treated  on  an  earlier  page.3 

Just  as  there  can  be  no  assignations  to,  so  also  there  can  be 
no  removals  from  a  convent  of  the  Order  of  Friars  Preachers 
within  two  months  previous  to  an  election,  unless  necessity  of 
providing  for  an  office  in  another  convent  or  grave  scandal  re- 
quires a  removal.  And  if  a  vocal  is  removed  for  any  reason 
within  this  time  he  retains  his  voice  in  the  convent  a  quo,  even 
though  no  longer  assigned  there.  If  after  the  election  and  con- 
firmation of  a  prior,  brothers  are  assigned  to  or  removed  from  a 
convent,  and  some  time  later  the  election  and  confirmation  are 
cassed,  the  election  of  a  new  prior  does  not  pertain  to  those  who 
here  and  now  have  been  assigned  to  the  convent  for  two  months, 
but  to  those  who  were  assigned  thereto  for  two  months  previous 
to  the  former  vacancy,  for  a  priorship  is  considered  vacant  from 
the  expiration  of  one  prior's  term  of  office  until  the  lawful  and 
valid  election  and  confirmation  of  another.4 

If  a  superior  remove  a  vocal  within  the  prohibited  time,  the 
election  is  licit  and  valid,  if  he  was  not  excluded  or  contemned 
by  the  electoral  body.  Neither  is  the  election  voidable  at  the  in- 
stance of  the  said  vocal,  for  he  suffered  no  injury  from  the  elect- 
ors, but  from  the  superior.5     But  if  he  were  excluded  and  con- 

1  vide  p.  42,  lit.  b. 
2Passerini,  lb.  n.  50. 
3  vide  p.  42. 

*  Castell.,  lb.  c.  5,  n.  73. 
5  Passerini,  lb.  n.  106. 


90  CANONICAL    ELECTIONS 

temned  by  both  chapter  and  superior,  the  election  is  voidable  at 
his  indictment.  In  case  the  number  was  unjustly  increased,  if  it 
is  evident  the  election  was  not  decided  by  this  circumstance,  it 
is  neither  void  nor  voidable,  for  "utile  per  inutile  non  vitiatur." 
In  doubt,  the  vocals  should  be  admitted  under  protest.1 

III.  Freedom  of  election  is  also  impeded  by  violence  and 
fear.  The  former  absolutely  destroys  free  will  and  renders  an 
act  wholly  involuntary.  The  latter  implies  a  dread  of  evil,  but 
does  not  absolutely  force  the  will,  it  causes  a  person  to  will  some- 
thing, which  he  would  not  have  willed,  if  he  did  not  apprehend 
evil.  Vocals  are  affected  by  the  former  if  they  are  violently 
ejected  from  the  capitular  assembly,  or  compelled  to  cast  a  ballot 
against  their  will ;  by  the  latter  when  through  fear  of  grave  in- 
jury they  are  moved  to  vote  for  a  particular  candidate — being 
forced  to  choose  a  lesser  in  order  to  avoid  a  greater  evil. 

Violence  and  fear  may  be  just  or  unjust:  just  when  a  vocal 
is  compelled  by  legitimate  authority  to  observe  the  prescriptions 
of  the  sacred  canons  ;  unjust  when  the  legitimate  liberty  of  the 
vocal  is  destroyed.  Violence  properly  so-called  renders  an  elec- 
tion null  and  void,  since  it  destroys  freedom  of  choice.  If  fear  is 
justly  and  reasonably  incited  by  superiors,  elections  thus  affected 
are  neither  void  nor  voidable — even  when  the  electors  are  re- 
stricted to  one  candidate,  for  the  elector  is  not  thereby  absolutely 
necessitated  to  one,  since  fear  does  not  destroy  liberty  and  his 
act  remains  voluntary.2  The  common  and  most  probable  opinion 
is  that  elections  brought  about  through  fear  unjustly  excited  are 
not  ipso  jure  void  but  voidable,  unless  there  be  a  special  law  to 
the  contrary.3  Grave  fear  unjustly  directed  to  extort  the  votes 
of  the  electors  is  sufficient  to  annul  an  election. 

All  who  unjustly  persecute  ecclesiastical  vocals,  for  not  hav- 
ing elected  the  candidate  they  proposed,  incur  the  penalty  of  ex- 
communication.4 This  censure  is  also  extended  to  postulation 
and  in  a  wide  sense  to  presentation.5 

IV.  Many  pontifical  constitutions  have  been  promulgated 
against  those  who  procure  the  votes  of  electors  by  evil  suborna- 
tions or  bribes.  Clement  VIII  decreed  that  all  who  directly  or  in- 
directly procured  votes  in  this  way  either  for  themselves  or  for 
others  should  be  deprived  of  voice  perpetually.    Accomplices  and 

1  Lezana,  lb.  n.  107. 

-  St.  Th.  la  Ilae,  qu.  6,  art.  6,  ad  2m. 

3Passerini,  lb.  c.  4,  n.  10. 

4  Lateran  Council. 

5Passerini,  lb.  n.  44. 


CANONICAL    ELECTIONS  91 

those  knowing  but  not  revealing  such  actions  also  incur  the 
penalty.1 

Consultations  of  vocals  rightly  ordered  according  to  justice 
and  charity  is  not  only  not  prohibited  but  prescribed.  If  an 
elector  is  in  doubt  as  to  which  is  the  fittest  candidate  he  may 
extol  the  virtues  and  the  merits  of  the  one,  and  in  so  far  as 
justice  will  permit  modestly  recount  the  defects  of  the  others. 
These  discussions  are  evil  and  are  to  be  reprobated  if  they  take 
place  before  the  office  is  vacant.  In  the  Order  of  Friars  Preach- 
ers one  public  discussion  is  allowed  on  the  day  previous  to  the 
election,  but  the  vocals  may  engage  in  private  discussions  at  will. 

Provincials  of  the  same  order  who  endeavor  to  induce  di- 
rectly or  indirectly  electors  to  vote  for  unworthy  candidates  are 
punished  with  privation  of  active  and  passive  voice  and  perpetual 
inhability  to  all  dignities  and  offices.2  Passerini,  contrary  to 
manv  other  authors,  holds  that  these  public  discussions  on  the 
merits  of  candidates  are  not  necessary,  except  when  ordered  by 
the  Supreme  Pontiff,  and  that  general  chapters  can  prescribe  un- 
der pain  of  excommunication  latae  sententiae  that  they  be 
omitted.3 

V.  It  is  forbidden  to  bestow  offices  on  regulars  at  the  re- 
quest of  persons — secular  or  ecclesiastical — outside  an  order,  or 
to  procure  office  through  their  influence,  for  the  interference  of 
outsiders  tends  to  bring  discord  and  dissension  into  a  community. 
Parents  do  not  come  under  the  name  of  outsiders.4  The  censures 
incurred  by  superiors  sinning  in  this  respect  vary  according  to 
different  institutes.  It  is  certain  that  all  sin  mortally.  Superiors 
of  the  Friars  Minor,  Hermits  of  St.  Augustine,  Carmelites,  and 
of  other  orders  incur  excommunication  latae  sententiae.5  The 
constitutions  and  ordinations  of  the  Order  of  Friars  Preachers 
mention  no  penalty,  but  the  chapter  of  Rome  1589  and  Milan  1622 
warned  superiors  that  such  actions  would  bring  upon  them  the 
guilt  of  mortal  sin. 

Subjects  are  forbidden  to  procure  offices  through  the  influ- 
ence of  outsiders,  to  accept  those  thus  procured,  or  to  bestow 
gifts  for  the  purpose  of  obtaining  them.  Unprofessed  novices 
and  nuns  are  not  comprehended  in  the  pontifical  decrees.  In 
some  orders  members  are  permitted  to  procure  offices  for  those 

1  lb.  c.  5,  n.  31. 

"  Toulouse,  1628. 

3  Passerini,  lb.  65-73. 

'  Portell.,  n.  18. 

2  lb.   n.   1. 


92  CANONICAL    ELECTIONS 

in  the  same  order ;  in  the  Order  of  Friars  Preachers  it  is  for- 
bidden to  procure  them  either  for  oneself  or  for  others.1  To 
determine  accurately  the  discipline  regarding  subjects,  the  dif- 
ferent papal  constitutions  published  for  different  orders  must  be 
considered.  Subjects  of  the  Order  of  Friars  Preachers  incur  ex- 
communication latae  sententiae,  perpetual  privation  of  suffrages 
and  all  offices,  and  many  grevious  penalties.2 

VI.  One  of  the  worst  vices  that  can  creep  into  canonical 
elections  is  simony.  Simony  is  a  deliberate  intention  of  buying 
or  selling  for  a  temporal  price  such  things  as  are  spiritual  or 
annexed  unto  spirituals.3  Speaking  of  simoniacal  elections  we 
include  all  modes  of  ecclesiastical  provision.  Furthermore,  if 
the  first  act  of  an  election  is  simoniacal,  so  also  are  all  subsequent 
acts.  Purchase  and  sale  are  strictly  required  to  constitute 
simony,  for  any  exchange  of  spiritual  for  temporal  things  is 
simoniacal,  e.  g.  elect  me  bishop,  and  I  shall  confer  a  benefice 
upon  you.  The  general  rule  is  that  to  impose  any  burden  on  a 
spiritual  office  not  annexed  to  it  is  simony.  It  is  not  simony  to 
give  a  temporal  as  a  price  of  a  spiritual  thing,  provided  it  was 
not  the  determining  motive.4 

The  first  censure  pronounced  against  simoniacs, — even  oc- 
cult— is  excommunication  latae  sententiae  simply  reserved  to  the 
Apostolic  See,  and  affects:  1°  those  persons  and  their  accom- 
plices who  are  guilty  of  simony  in  ecclesiastical  benefices,  pro- 
vided that  the  terms  of  the  agreement  have  been  partly  or  com- 
pletely fulfilled  by  both  parties ;  2°  all  persons  of  whatsoever 
dignity  who  procure  a  benefice  for  a  certain  person  with  the 
agreement  that  the  latter  will  later  either  resign  the  benefice  in 
favour  of  him  through  whom  it  was  procured,  or  divide  the  rev- 
enues with  him ;  3°  those  who  buy  or  sell  admission  into  a  re- 
ligious order.5 

A  simoniac  is  also  suspended,  but  since  he  is  already  excom- 
municated, this  censure  is  of  little  moment.  He  may  likewise 
accidently  incur  irregularity  from  the  fact  that  he  is  branded 
with  infamy.  He  does  not  incur  it  per  se,  since  irregularity  is 
incurred  only  in  cases  expressly  declared  by  law,  and  nowhere 
can  we  find  such  a  declaration. 


'Rome,  1589. 

'  Fontana,  v.  favores. 

'St.  Th.  2a  2ae  qu.  100,  art.  1. 

*  Suarez,  n.   13. 

5  Const.  "Apostolicae  Sedis." 


CANONICAL    ELECTIONS  93 

Infamy  of  law  ferendae  sententiae  is  another  penalty  of 
simony,  and  this  once  incurred  brings  with  it  irregularity.  All 
simoniacal  promotions  even  among  regulars  are  affected  by  this 
censure.  Simoniacs  not  only  incur  these  grave  penalties,  but  are 
also  deprived — ferendae  sententiae — of  all  offices  and  benefices.1 

All  ecclesiastical  provisions  tainted  with  simony  are  ipso 
jure  null  and  void.2  We  except  papal  elections  from  this  state- 
ment :  Julius  II  declared  these  elections  invalid  but  this  enact- 
ment was  rescinded  by  Pius  X.3  Both  parties  are  bound  to  resti- 
tution. The  purchaser  is  also  bound  in  conscience  to  restore  all 
profits  actually  acquired,4  as  well  as  those  which  but  for  his  fault 
the  rightful  possessor  would  have  acquired.  He  may,  however, 
retain  the  expenses  attached  to  the  acquisition  of  the  profits — 
except  those  expended  in  improving  the  benefice,  and  the  salary 
due  to  his  ministry.  A  simoniacal  office  becomes  ipso  facto 
vacant,  and  can  be  conferred  on  another  without  awaiting  a  sen- 
tence of  declaration,  for  it  is  sufficient  if  declaration  is  made  and 
proof  furnished  even  after  a  new  collation ;  but  the  condemned 
may  appeal  from  the  sentence,  and  if  he  does,  he  must  not  in  the 
meantime  be  deprived  of  his  office,  though  in  conscience  he  sins 
in  retaining  it. 

Persons  who  in  good  faith  receive  a  simoniacal  benefice  must 
resign  it  together  with  the  profits,  except  those  consumed  while 
in  good  faith.  If,  however,  an  enemy  fraudulently  gives  money 
for  the  promotion  of  a  person,  so  that  the  election  will  be  cassed 
and  the  candidate  punished,  or  if  on  hearing  that  simony  was  to 
enter  into  the  election,  said  person  expressly  objects  thereto,  he 
lawfully  and  validly  acquires  the  benefice,  and  is  not  held  to  re- 
nounce it.  unless  he  afterwards  consented  to  the  agreement  by 
carrying  out  its  stipulations.5  But  if  such  an  election  favored 
the  candidate,  and  unconscious  of  it  he  made  no  resistance,  the 
acquisition  is  null,  and  as  soon  as  the  beneficiary  learns  of  it,  he 
is  bound  to  resign  both  benefice  and  profits — even  those  con- 
sumed, in  so  far  as  he  had  thereby  become  richer.6  But  if  he 
held  the  benefice  for  three  years  in  the  same  good  faith  in  which 
he  had  received  it,  he  is  in  nowise  bound  to  resign  it.7 


1  cap.  Presbyter  3. 

2  Paul  II.  "Cum  detestabile." 

Const.  "Vacante  Sede,"  Dec.  25,  1904. 
4  St.  Th.  2a  2ae  qu.  100,  art.  6,  ad  3m. 
;  St.  Th.  lb. 
6  lb. 
:  Rota  in  Calagur.  Dec.  14,  1592. 


94  CANONICAL    ELECTIONS 

VII.  The  interference  of  secular  power  is  also  detrimental 
to  the  natural  liberty  of  ecclesiastical  elections.  A  person  con- 
senting to  his  being  elected  through  abuse  of  secular  power  is 
deprived  of  office  and  becomes  ineligible  to  all  dignities  unless  he 
obtain  a  dispensation.  Electors  celebrating  such  an  election 
render  it  invalid,  are  suspended  from  offices  and  dignities  for 
three  years,  and  deprived  of  active  voice.1  In  the  latter  case, 
bishops  are  excepted,  for  they  do  not  fall  under  a  general  law  of 
suspension.  This  decree  refers  only  to  elections  to  prelacies 
strictly  so-called,  hence  does  not  include  canonries,  benefices  with 
care  of  souls,  or  other  offices  not  dignities.2 

Election  by  abuse  of  secular  power  takes  place  when  a  lay 
person  or  power  takes  an  active  part  in  an  election,  exercises 
any  office  therein,  or  when  his  consent  is  required  for  the  election 
of  a  certain  person.  If  a  lay  person  inspires  fear  to  such  an  ex- 
tent that  he  actually  forces  the  electors  to  elect  a  candidate  of 
his  choice,  or  one  of  a  certain  class,  the  election  is  null  and  void ; 
but  if  through  grave  fear  he  compel  them  to  admit  him  into  the 
chapter,  to  give  him  some  office,  or  to  obtain  his  consent,  the 
election  is  valid,  and  the  vocals  are  neither  suspended  nor  de- 
prived of  voice.3 

It  is  not  an  abuse  of  secular  power:  1°  if  a  layman  takes 
part  in  an  election  from  privilege,  which  can  be  granted  by  the 
pope  ;  2°  if  from  privilege  or  custom  lawfully  prescribed  a  prince 
wishes  to  be  notified  of  the  death  of  a  prelate,  that  the  election 
take  place  only  with  his  permission,  or  that  his  consent  be  asked 
for  elections  already  held ;  3°  if  from  custom,  privilege,  or  con- 
ditions placed  when  founding  a  benefice,  the  consent  of  the  patron 
is  required  for  elections  therein.  If  the  patron  is  a  layman,  this 
privilege  can  be  conceded  by  the  pope,  if  an  ecclesiastic,  by  the 
bishop.  A  custom  cannot,  however,  be  introduced,  in  virtue  of 
which  a  layman  may  be  permitted  to  vote  in  ecclesiastical  elec- 
tions.4 A  custom  cannot  be  introduced  whereby  an  election  held 
contrary  to  the  wishes  or  without  the  consent  of  a  prince  would 
be  ipso  jure  void  or  voidable. 

The  Council  of  Sardinia  ordained  that  those  who  elect  or 
postulate  by  the  voice  of  the  people,  are  for  that  time  deprived 
ipso  facto  of  suffrage,  and  the  election — ipso  juro  null— devolves 


1  cap.   Quisquis   43. 

2Barbosa,  de  jure  eccles.  I.  n.  19. 

x  Bonacius,  de  censuris,  disp.  3,  q.  4,  p.  5,  n.  4. 

4Azorius,  11,  1,  6,  c.  4,  q.  18. 


CANONICAL    ELECTIONS  95 

to  those  who  were  not  guilty.     Paschal  II  declared  all  who  re- 
ceive a  benefice   at   the  hands  of  a  layman   excommunicated.1 

VIII.  Ecclesiastical  elections  can  also  be  vitiated  by  the 
non  observance  of  the  form  and  solemnities  required  by  positive 
and  canon  law.  A  slight  omission  in  the  form  does  not  vitiate 
the  act.  But  where  it  is  altered  to  a  considerable  extent,  either 
by  acting  contrary  to  or  not  in  accordance  with  it,  the  act  is  null. 
If,  for  a  just  impediment,  the  form  prescribed  by  positive  law  is 
omitted,  the  election  is  valid,  for  it  is  repugnant  to  reason  that 
positive  law  should  bind  one  to  the  impossible,  since  such  is  con- 
trary to  the  justice  of  law.2 

When  an  election  has  been  invalidly  conducted  because  of  the 
non  observance  of  the  form,  and  the  vocals  learn  of  the  defect 
before  a  sentence  has  been  pronounced,  they  can  emend  their 
fault  and  again  lawfully  elect,  because  by  reason  of  the  first 
defect  alone,  they  were  not  ipso  jure  deprived  of  voice.3  More- 
over, if  the  majority  sin  against  the  form  and  wish  to  repair  their 
fault,  they  may  do  so  even  against  the  opposition,  protestations 
of  nullity  and  appeal  of  the  minority,  for  the  majority  does  not 
lose  its  right  nor  the  minority  acquire  a  new  right,  before  a  sen- 
tence has  been  given  to  this  effect.  But  once  the  election  has 
been  perfected,  the  vocals  cannot  proceed  to  a  new  election  until 
the  first  shall  have  been  cassed. 

There  are  many  other  points  regarding  the  form  and  solem- 
nities of  canonical  elections,  but  since  they  have  been  already 
exposed  in  detail  in  the  chapter  on  the  act  of  election,  to  recount 
them  here  would  be  a  useless  repetition. 


1  cap.  Si  quis  clericus. 

3  St.  Th.  la  2ae.,  q.  95,  art.  2. 

3  Sylvester,  Electio  I.  n.  3. 


CHAPTER  IX 
Subsequent  Acts 

I.  A  canonical  election  is  ipso  jure  null  and  void  if,  previous 
to  the  election,  the  one  nominated  in  the  scrutiny  consented  to  his 
election.  For  to  consent  to  an  election  at  any  time  before  the 
choice  has  been  declared  in  the  name  of  the  chapter  by  the  one 
appointed,  is  contrary  to  the  prescriptions  of  the  chapter  "Quia 
propter."  Hence,  the  electors  cannot  in  the  name  of  the  chapter 
publicly  ask  for  the  consent  of  the  person  elected  until  the  elec- 
tion has  been  closed.  A  private  interrogation  prior  to  the  elec- 
tion is  at  times  useful  and  laudable,  but  it  must  not  be  made  in 
the  name  of  the  chapter. 

If  the  election  meets  with  no  opposition  on  the  part  of  those 
interested  therein,  common  law  prescribes  that  the  presiding 
official  notify  the  person  elected  that  choice  has  been  made  of  his 
person,  and  ask  his  consent.  Regarding  this  notification  special 
statutes  and  customs  should  be  observed.  In  the  Order  of  Friars 
Preachers  no  notification  is  made,  even  though  the  one  chosen  be 
present,  nor  is  his  consent  required,  but  the  document  of  election 
is  sent  to  the  superior,  who — since  the  will  of  the  subject  is  that 
of  the  superior — can  compel  him  even  unwilling  to  accept  the  prel- 
acy, or  forbid  him  to  accept  it,  if  there  be  a  reason  for  doing  so. 

When  consent  is  required,  and  the  elect  be  present,  the  noti- 
fication takes  place  immediately ;  if  he  be  absent,  it  must  be 
made  within  eight  days,  barring  legitimate  hindrance.  If,  at  the 
expiration  of  eight  days,  the  notification  has  not  been  forwarded, 
the  electors  are  presumed  to  have  omitted  it  through  fraud  or 
culpable  neglect — unless  they  prove  the  contrary,  and  are  pun- 
ished by  exclusion  from  the  prosecution  of  the  process,  and  are 
suspended  for  three  continuous  years  from  all  benefices  possessed 
in  the  church  in  which  the  election  took  place.1  The  notification 
may  be  intrusted  to  a  procurator  specially  deputed  for  the  office. 

If,  before  the  papers  of  election  have  reached  the  confirming 
prelate,  the  person  elected  in  the  presence  of  the  electors  with- 
draws his  consent  already  given,  the  chapter  may  thereupon  elect 
another,  without  awaiting  the  permission  of  the  confirming  prel- 

1  Miranda.II,  q.  23,  a.  10. 


CANONICAL    ELECTIONS  97 

ate.  The  elect  may  afterwards  recall  his  renunciation,  with  the 
consent  of  the  vocals.1  But  if  in  the  same  hypothesis  the  supe- 
rior has  already  received  the  papers,  the  chapter  cannot  proceed 
to  a  new  election  without  his  permission.  Religious  also  may 
renounce  their  right,  unless  forbidden  by  superiors.2  For 
although  a  religious  has  neither  velle  nor  nolle  contrary  to  the 
will  of  his  superior,  still  the  will  of  the  latter  is  presumed  to  be 
that  of  the  written  law,  unless  the  opposite  is  evident,  as  in  the 
Order  of  Friars  Preachers.3 

The  person  elected  must  make  known  his  acceptance  or 
refusal  within  one  month  from  the  day  he  received  the  notifica- 
tion or  permission  of  his  superior  when  such  is  obligatory,  and 
if  he  fails  to  do  so  he  loses  the  right  acquired  by  election,  and 
the  office  becomes  vacant.4  If  he  refuses  to  accept  the  office,  the 
chapter  will  proceed  to  another  election  within  a  month.  The 
refusal  of  the  person  elected  in  no  way  prohibits  his  being  re- 
elected. In  the  Order  of  Friars  Preachers,  priors-elect  must 
make  known  their  acceptance  or  refusal  within  three  hours  from 
the  receipt  of  the  letters  of  confirmation. 

II.  If  the  person  elected  accept  the  proffered  office,  he 
acquires  a  real  though  still  incomplete  right  to  the  said  office, 
the  jus  ad  rem  to  be  changed  to  a  jus  in  re  by  the  confirmation 
of  the  election,  and  if  qualified  for  the  office  in  question,  it  is  his 
privilege  to  exact  confirmation  from  the  superior,  just  as  it  is 
the  latter's  duty  to  give  it.  Confirmation,  then,  is  the  principal 
act  of  election,  and  immediately  on  its  having  been  received  there 
arises  between  the  confirmed  and  the  benefice  a  bond  of  spiritual 
matrimony.  It  also  brings  with  it  the  power  of  jurisdiction,  so 
that  if  a  person  should  renounce  an  office  after  confirmation,  the 
office  does  not  become  vacant  by  reason  of  the  predecessor's 
death,  but  by  reason  of  the  renunciation  of  the  person  confirmed. 
Although  confirmation  confers  jurisdiction,  still  the  person  con- 
firmed does  not  acquire  a  right  to  exercise  this  jurisdiction  until 
he  has  presented  his  letters  of  confirmation  to  the  chapter. 

Should  the  person  elected  interfere  in  the  administration  of 
his  benefice  before  presenting  the  letters  of  confirmation  to  the 
chapter,  all  his  administrative  acts  are  invalid,  and  he  is  deprived 
of  the  benefice.     This   severe  legislation,  which   concerns  epis- 


1  cap.  Si  electio  in  VI. 
201dr.  ad.  conf.  128,  n.  7. 

3  Const.  D.  II,  C.  II. 

4  Rota,  decis.  7,  1.  2,  conf.  5,  cas.  477. 


98  CANONICAL    ELECTIONS 

copal  sees  only,  merits  a  brief  notice.  Innocent  III1  decreed  that 
a  bishop-elect  but  not  confirmed  cannot  interfere  in  diocesan 
affairs,  under  penalty  of  losing  ipso  facto  the  right  acquired  by 
election.  Exception  was  made  for  bishops  outside  of  Italy,  pro- 
vided they  were  unanimously  elected,  and  the  utility  or  necessity 
of  the  diocese  required  their  interference.  In  the  Second  Coun- 
cil of  Lyons  in  1274,  Gregory  X2  forbade  all  elected  persons  to 
exercise  the  administration  of  their  benefices  by  assuming  the 
title  of  administrator,  procurator,  or  the  like — the  punishment 
being  deprivation  of  dignity.  The  French  church  contended  that 
this  legislation  applied  only  to  episcopal  election  and  not  to  epis- 
copal presentation,  but  since  the  reason  for  the  prohibition  is 
applicable  to  both  cases,  namely,  to  prevent  an  unworthy  person 
from  meddling  in  diocesan  affairs,  it  includes  both,  for  "ubi 
eadem  est  ratio,  eadem  est  lex."  Somewhat  later  Boniface  VIII3 
promulgated  a  law  still  in  force  in  regard  to  taking  possession 
of  episcopal  sees  and  major  benefices,  in  accordance  with  which 
bishops  elected  and  confirmed  must  not  enter  into  the  administra- 
tion of  their  sees  before  presenting  letters  of  confirmation  to 
the  chapter  of  the  cathedral  church.  In  the  United  States,  the 
letters  must  be  delivered  to  the  administrator  of  the  diocese. 
On  August  27,  1873,  Pius  IX  published  a  Constitution  in  which 
he  declared:  1°  chapters  can  neither  appoint  temporarily  vicars 
capitular  nor  remove  them  from  office  until  the  newly  elected 
bishop  shall  have  presented  the  apostolic  letters  of  his  promo- 
tion ;  2°  the  constitution  "Avaritiae"  extends  to  candidates 
named  and  presented  by  heads  of  states  in  virtue  of  concordats  : 
3°  the  office  of  vicar  capitular  becoming  vacant,  the  chapter 
should  elect  a  successor,  not  however  the  bishop-elect,  or  persons 
nominated  by  civil  power  ;  4°  those  offending  against  this  law  are 
punished  by  excommunication  specially  reserved  to  the  Holy  See, 
and  privation  of  the  revenues  of  their  benefices  ;  5°  the  same 
penalties  are  incurred  by  the  person  elected  or  nominated,  as 
well  as  by  all  those  who  give  aid,  counsel,  or  countenance.  More- 
over, the  person  elected  or  nominated  loses  all  acquired  right  to 
the  benefice,  the  acts  exercised  are  invalid,  and  if  he  be  a  bishop 
he  is  further  punished  by  suspension  from  pontifical  ceremonies — 
this  penalty  also  reserved  to  the  Holy  See.    If  the  administrator 


1  Const.  "Nihil." 
*  Const.  "Avaritiae." 
8  Decret.  "Injunctae." 
4"Romanus  Pontifex." 


CANONICAL    ELECTIONS  99 

is  elected  bishop,  he  may  continue  the  administration  of  affairs 
in  virtue  of  his  office  already  possessed  at  the  time  of  election. 

Some  elections  do  not  require  confirmation,  hence  persons 
thus  elected  may  enter  upon  the  administration  of  office  imme- 
diately on  being  elected.  The  Roman  Pontiff,  for  instance,  as- 
sumes full  administration  of  the  Church  as  soon  as  he  is  elected. 
Nearly  all  the  generals  of  religious  orders  by  reason  of  election 
are  at  the  same  time  confirmed.  Although  elections  of  priors 
and  provincials  need  confirmation,  nevertheless  in  many  prov- 
inces of  the  Order  of  Friars  Preachers  as  soon  as  they  have  been 
elected,  the  provincials  administer  either  as  vicars — as  in  Spain, 
or  as  provincials — as  in  the  provinces  of  the  Indies.1  But  such 
jurisdiction  is  imperfect  and  quasi-conditional,  and  opposition 
can  be  made  to  the  election  itself,  and  action  for  cassation  taken. 
Finally  where  there  is  a  legitimately  prescribed  custom  that  a 
candidate-elect  may  administer  before  he  has  been  confirmed, 
this  custom  obtains,  and  said  person  lawfully  and  validly  exer- 
cises administration.2 

According  to  common  law  persons  elected  not  only  may, 
but  are  bound  to  seek  confirmation.  Those  whose  confirmation 
rests  with  the  pope,  must  set  out  for  Rome  within  a  month  to 
obtain  the  required  confirmation  ;3  all  others  must  request  it 
within  three  months.4  Those  presented  to  a  benefice  by  an  eccle- 
siastic must  receive  confirmation  within  six  months,  if  presented 
by  a  layman,  within  four  months.5  Allowances  are  made  in  all 
cases  for  legitimate  hindrances.  Confirmation  may  be  sought  by 
proxy,  but  not  necessarily  if  the  elect  labor  under  an  impediment^ 
except  when  there  is  a  question  of  papal  confirmation.6  If  a 
friend,  even  though  not  commissioned,  obtain  the  confirmation,, 
it  is  valid  if  the  person  elected  ratify  the  petition  within  three 
months.7  Electors  also  may  petition  for  the  confirmation.  In 
case  of  papal  confirmation,  two  electors  should  accompany  the 
one  elected.  Although  it  is  the  electors  who  request  the  con- 
firmation in  the  Order  of  Friars  Preachers,  still  the  elect  himself 


1  Peyr.,  c.  18,  n.  2. 

2  Passerini,  lb.,  c.  33,  n.  36. 

3  Cap.  Cupientes  in  VI. 

4  cap.  Quam  sit  ibidem. 
'  cap.  Unico  in  VI. 

6  Passerini,  lb.  n.  45. 

7  Barbosa,  cap.  Quam  sit,  n.  11. 


100  CANONICAL    ELECTIONS 

may  do  so,  and  he  is  not  to  be  censured  for  thus  acting,  since  he  is 
presumed  not  to  be  seeking  his  own  so  much  as  the  public  good.1 

Persons-elect  neglecting  to  attend  to  the  matter  of  con- 
firmation within  three  months  forfeit  their  right,  which  returns 
to  the  chapter.  Superiors  may  restrict  this  time  limit  for  legiti- 
mate reasons. 

A  valid  election  must  necessarily  be  confirmed  by  the  supe- 
rior, and  if  he  refuse,  he  should  be  compelled  to  do  so  by  higher 
authority,  and  a  limit  should  be  placed  within  which  he  must 
confirm,  otherwise  the  higher  authority  should  give  the  letters  of 
confirmation.2  No  time  is  prescribed  by  common  law,  for  the  rea- 
son that  it  should  be  confirmed  as  soon  as  it  is  known  to  be  valid ; 
where  special  law  sets  a  limit,  it  should  be  brief,  and  not  exceed 
six  months. 

The  constitutions  of  the  Order  of  Friars  Preachers  say  that 
provincials  and  generals  may  confirm  or  veto  elections  according 
as  it  seems  best  to  them.  This  does  not  mean  that  they  can 
per  se  veto  a  valid  election,  for  the  above  concession  does  not 
bespeak  absolute  freedom,  but  the  judgment  of  a  prudent  man, 
which  should  be  regulated  by  law.  Neither  do  the  constitutions 
wish  to  derogate  from  common  law,  for  they  could  not  do  so 
without  special  apostolic  authority.  Common  law  states  that 
elections  in  no  way  canonically  defective  should  be  confirmed. 
Nevertheless,  a  superior  may  per  accidens  cass  a  valid  election, 
for  per  accidens  it  is  not  necessary  to  confirm  it.  First,  because 
of  circumstances,  for  it  could  happen  that  the  person  elected — 
howsoever  worthy — might  be  unacceptable  to  the  authorities  of 
the  place  in  which  the  convent  is  situated,  and  because  of  this 
or  other  reasons  grave  scandal  would  arise.  Secondly,  if  the  com- 
mon good  of  the  order  should  require  his  services  in  another  office 
incompatible  with  the  prelacy  in  question. 

Elections  should  be  confirmed  by  the  immediate  superior  of 
the  person  elected.  Episcopal  elections  are  confirmed  by  the 
pope.  The  pope  or  his  legate  a  latere  confirms  the  elections  of 
all  those  immediately  subject  to  the  Holy  See.  The  elections 
of  generals  that  require  confirmation  are  likewise  confirmed 
by  the  pope  or  his  legate  a  latere.  The  confirmation  of  other 
religious  prelates  pertain  to  their  immediate  superiors.  In  case 
of  appeal  the  judge  who  pronounces  the  sentence  either  confirms 
or  vetoes  the  election. 


1  Passerini,  lb.  n.  47. 

2  Castellini,  c.  14,  n.  15. 


CANONICAL    ELECTIONS  101 

Confirmation  has  no  specified  form,  but  may  be  given  by  oral 
or  written  word,  or  even  an  action  bespeaking  approval,  such  as 
installation  or  the  like.  Letters  are  necessary  for  confirmations 
coming  from  the  Holy  See,  and  also  when  other  confirmations 
need  to  be  proved.  The  confirming  prelate  must  examine  care- 
fully both  the  election  itself  and  the  person  of  the  one  elected,  for 
he  must  have  a  moral  certitude  that  everything  is  conformable 
to  law.  Hastily  given  and  uninvestigated  confirmations  may 
be  objected  to,  and  if  justice  demand  it,  they  should  be  declared 
invalid,1  and  the  superior  loses  the  right  of  confirming  the  next 
prelate  in  that  office,  and  is  suspendid  from  his  benefice.  Regular 
superiors  are  not  held  to  this  investigation.  In  the  Order  of 
Friars  Preachers  a  provincial  must  seek  the  counsel  of  discreets 
in  confirming  priors,  and  should  he  neglect  to  do  so,  he  is  to  be 
punished,  but  the  confirmation  is  valid.2 

The  superior  must  confirm  the  election  of  a  worthy  candi- 
date,3 This  is  true  even  if  the  electors  had  taken  oath  to  elect 
the.  one  best  fitted,  or  even  if  there  was  a  statute  saying  that  the 
election  of  a  worthy  candidate  should  not  prevail  if  one  worthier 
were  passed  by,  for  such  a  statute — contrary  to  common  law- 
is  invalid,  unless  confirmed  by  the  pope.  The  electors  would  sin 
mortally  in  not  electing  the  one  best  fitted  for  the  office.4 

Confirmation  given  at  the  request  of  the  parties  concerned, 
or  solemnly  ex  officio  is  a  definitive  sentence  ;  but  if  given  by 
summary  judgment,  it  is  an  interlocutory  sentence.  Among 
regulars  confirmation  for  the  most  part  is  given  in  a  summary 
judgment,  usually  from  report  or  testimonial  letters.  If  made 
by  interlocutory  sentence,  the  superior  may  retract  it  and  veto 
the  election,  but  this  cannot  be  done  when  confirmation  is  con- 
ferred by  definitive  sentence.5  A  superior  residing  outside  of  his 
territory  cannot  confirm  an  election  solemnly  ex  officio,  but  only 
by  summary  judgment,  for  confirmation  is  a  judicial  act.  Where 
the  form  in  the  last  chapter  on  election  in  VI  is  observed,  con- 
firmation is  always  given  by  a  definitive  sentence,  and  hence 
cannot  be  pronounced  outside  of  one's  territory. 

III.  The  acts  of  election  and  confirmation  concluded,  there 
next  follows  that  of  consecration.  The  former  acts  confer  epis- 
copal jurisdiction,  while  the  latter  brings  with  it  the  fullness  of 

1  lb.,  c.  14,  n.  9. 

2  Passerini,  lb.,  n.  116. 

3  St.  Th.  2a  2ae  q.  63,  art.  2,  ad  3m. 

4  Passerini,  lb.,  n.  116. 

5  lb.,  169. 


102  CANONICAL    ELECTIONS 

the  priestly  power — the  completion  of  hierarchical  orders.  For- 
mer legislation  conceded  the  right  of  both  confirmation  and  con- 
secration to  the  provincial  metropolitan,  who  could  delegate 
another  bishop  to  perform  the  latter  ceremony.  In  the  present 
discipline  no  bishop  can  be  lawfully  consecrated  except  by  the 
Roman  Pontiff,  or  by  his  delegate  specially  commissioned  for 
the  purpose.  The  consecrator  must  therefore  first  of  all  assure 
himself  of  the  delegation.' 

If  the  consecration  takes  place  outside  of  Rome,  the  bishop- 
elect  by  apostolic  indult  chooses  as  consecrator  any  bishop  in 
communion  with  the  Holy  See.  If  it  takes  place  in  Rome  per- 
mission is  given  him  to  choose  either  one  of  the  cardinal  bishops, 
or  one  of  the  four  major  patriarchs  residing  in  Rome.  Should 
no  one  of  these  accept,  he  may  select  any  archbishop  or  bishop, 
but  if  his  own  metropolitan  is  in  Rome  at  the  time,  the  suffragan 
is  obliged  to  request  him  to  perform  the  ceremony.  All  con- 
secrations that  take  place  in  Rome,  must  be  conducted  in  a  con- 
secrated church  or  in  the  papal  chapel.2 

The  ceremony  is  performed  by  three  bishops,  of  whom  one 
is  the  consecrator,  and  the  other  two  assistants.  A  consecration, 
however,  would  be  valid,  and  at  times  even  licit,  if  conferred  by 
one  bishop,  as  is  clear  from  indults  of  Gregory  the  Great,  Greg- 
ory III,  Innocent  X,  and  Alexander  VII.  Bisnops-eleet  of  Latin 
America  h%ve  an  indult,  in  virtue  of  which  they  may  kev  conse- 
crated by^two  or  three  priests  or  canons,  if  the  services  of  bishops 
cannot  be  obtained.  If  assistant  bishops  cannot  be  conveniently 
present,  their  places  may  be  filled  by  two  priests.  In  missionary 
countries,  the  consecrator  may  dispense  with  the  assistance  even 
of  priests.3  Previous  to  consecration  a  bishop-elect  must  take 
an  oath  of  loyalty  and  obedience  to  the  Holy  See. 

Bishops  are  bound  to  receive  consecration  within  three 
months  from  the  time  of  their  confirmation,  and  should  they  neg- 
lect this  duty  without  sufficient  reason  they  must  restore  the 
profits  meanwhile  acquired;  if  they  delay  for  another  three 
months,  they  may  be  deprived  of  their  episcopal  sees.4  Titular 
bishops  lose  their  right  of  episcopal  dignity  if  not  consecrated 
within  six  months  from  their  appointment.5  Consecration,  unless 
by  special  indult,  must  take  place  on  a  Sunday  or  the  feast  of  an 

1  Ben.  XIV.  Conct.  "In  postremo." 

-  S.  C.  Rituum,  n.  V. 

a  Zitelli  I.  tit.  1. 

4  Cone.  Trid.  sess.  23.  c.  2,  de  reform. 

6  Ben.  XIV.  Const.  "Quum  a  nobis." 


CANONICAL    ELECTIONS  103 

apostle  or  evangelist  (dies  natalitia) — not  however  on  a  feast 
commemorating  events  in  the  life  of  an  apostle.1  The  Council 
of  Trent  prescribed  that  consecrations  outside  of  Rome  should 
take  place  in  the  cathedral  church  or  at  least  within  the  province 
of  the  bishop-elect.2 

Corresponding  to  episcopal  consecration,  perpetual  abbots 
of  monastic  orders  must  within  one  year  from  the  day  of  their 
election  receive  solemn  benediction  from  the  bishops  in  whose 
dioceses  their  monasteries  are  situated.  If  they  are  later  trans- 
ferred to  another  diocese,  they  are  not  held  to  seek  this  benedic- 
tion a  second  time.3  Prelates  of  nearly  every  other  religious 
order,  immediately  on  receiving  and  signing  the  letters  of  con- 
firmation, become  ipso  facto  superiors  of  the  office  for  which 
they  have  been  elected. 

lS.  C.  Rituum,  July  17,  1706. 

2  lb. 

JBen.  XIII.  Const.  "Commissi  nobis." 


APPENDIX 


Manner  of  Electing  a  Sovereign  Pontiff 

On  December  25,  1904,  Pius  X  published  a  constitution 
"Vacante  Sede  Apostolica,"  in  which  he  determined  the  present 
mode  of  papal  election,  and  at  the  same  time  abolished  all  pre- 
vious legislation  on  this  point,  except  that  contained  in  his  for- 
mer constitution  "Commissum  Nobis,"  and  in  that  of  Leo  XJII 
"Praedecessores  Nostri." 

At  the  death  of  a  pope  the  cardinal  chamberlain  takes 
charge  of  the  papal  household,  in  whose  presence  he  juridically 
verifies  the  death  of  the  pontiff  by  striking  his  forehead  three 
times  with  a  silver  mallet,  calling  him  by  his  baptismal  name. 
The  papal  seals  and  the  fisherman's  ring  are  then  broken.  These 
acts,  which  are  the  legal  evidence  of  a  pope's  death,  are  drawn 
up  by  a  notary.  The  corpse  is  embalmed  twenty-four  hours  after 
death,  and  on  the  following  day  borne  to  Saint  Peter's,  where 
it  is  exposed  for  three  days  in  the  chapel  of  the  Blessed  Sacra- 
ment. At  the  approach  of  evening  the  remains  are  interred  in 
Saint  Peter's,  where  they  remain  for  one  year  bfore  being  taken 
to  their  final  resting  place. 

Meanwhile  all  the  absent  cardinals  are  notified  of  the  im- 
pending election  by  the  secretary  of  the  Sacred  College,  and 
those  resident  in  Rome  are  obliged  to  wait  ten  days  before  they 
proceed  with  the  election,  assisting  in  the  meantime  at  the  sol- 
emn obsequies  for  the  deceased  pontiff.  All  the  cardinals,  unless 
detained  by  a  legitimate  impediment,  are  bound  in  virtue  of  holy 
obedience  to  obey  the  summons  to  the  conclave.  The  funeral 
ceremonies  completed,  the  cardinals  on  the  tenth  day  assemble 
in  Saint  Peter's,  where  a  Mass  of  the  Holy  Ghost  is  sung  by  the 
cardinal  dean.  This  service  over  they  immediately — or  at  eve- 
ning, if  they  so  prefer — go  in  procession  to  the  conclave,  a  large 
walled  off  part  of  the  Vatican  palace.  The  aforesaid  constitutions 
of  Pius  X  and  Leo  XIII  are  then  read,  and  after  a  brief  sermon 
De  Eligendo  Summo  Pontifice  by  the  dean,  the  cardinals  proceed 
to  the  cells  assigned  to  them.  Absent  cardinals  on  reaching  the 
city  are  admitted  to  the  conclave  at  any  time  before  the  election 


CANONICAL    ELECTIONS  105 

is  concluded.  Each  cardinal  is  accompanied  by  two  attendants, 
either  clerics  or  lay  persons ;  in  case  of  illness  a  third  way  be 
allowed.  Other  officials  and  attendants  are  admitted  for  the 
service  of  the  cardinals  in  common,  the  conclave  numbering  in 
all  about  two  hundred  and  fifty  persons.  The  conclave  closed, 
all  communication  with  the  outside  is  strictly  forbidden,  except 
in  the  presence  of  those  prelates  to  whom  the  custody  of  the 
conclave  has  been  assigned,  and  then  only  in  an  intelligible  voice 
and  idiom.  All  are  equally  sworn  to  secrecy  concerning  those 
things  which  relate  to  the  election  under  pain  of  excommunica- 
tion ipso  facto  incurred. 

All  cardinals,  even  those  recently  created  but  not  yet  vested 
with  the  insignia  of  office,  enjoy  active  voice.  Those  excom- 
municated, suspended,  and  under  interdict  also  have  the  right 
to  vote.  Cardinals  not  in  deacon's  orders  are  not  admitted,  unless 
by  papal  indult.  Since  the  time  of  Urban  VI  in  1378  none  but  a 
cardinal  has  been  elected,  nevertheless  any  male  christian  who 
possesses  the  use  of  reason  may  be  elected.  The  election  of  an 
infidel,  heretic,  schismatic,  or  female  would  be  invalid. 

The  form  of  election  is  threefold,  by  compromise,  by  quasi- 
inspiration,  and  by  secret  scrutiny.  The  first  two  forms  are  the 
same  as  those  explained  above.  The  usual  form  is  that  of  scru- 
tiny or  secret  ballot,  which  is  resorted  to  twice  a  day  until  an 
election  takes  place.  For  this  mode  of  election  three  cardinals 
are  chosen  as  scrutineers  to  preside  over  the  voting,  three  others 
are  chosen  as  revisors  to  attend  to  the  count  of  their  colleagues, 
and  a  final  three  as  infirmarians  to  collect  the  ballots  of  the  in- 
firm, and  of  those  lawfully  detained  from  the  hall  of  election. 

Each  cardinal  writes  his  own  and  the  name  of  his  candidate 
on  the  ballot  (Ego  N.  Cardinalis  N.  eligo  in  Summum  Pontificem 
Reverendissimum  Dominum  meum  Dominum  Cardinalem  N.), 
then  seals  and  folds  it  so  that  the  name  of  the  candidate  only  is 
visible.  Next  it  is  folded  so  that  no  writing  can  be  seen,  and 
then,  beginning  with  the  dean,  each  cardinal  takes  his  ballot 
between  the  thumb  and  index  finger,  bears  it  aloft  to  the  altar 
before  which  stand  the  scrutineers,  and  on  which  is  a  large  chal- 
ice covered  with  a  paten.  He  kneels  at  the  foot  of  the  altar  for 
a  short  prayer,  then  rising  repeats  in  a  clear  and  intelligible  voice  : 
"I  call  to  witness  Christ  the  Lord,  who  will  judge  me,  that  I  elect 
the  one  whom  before  God  I  think  ought  to  be  elected."  He  next 
ascends  the  altar,  places  his  ballot  on  the  paten,  from  this  drops 
it  into  the  chalice,  and  returns  to  his  place.  If  any  cardinal  pres- 
ent be  unable  to  walk  to  the  altar,  the  last  scrutineer  will  go 


106  CANONICAL    ELECTIONS 

to  him  and  receive  his  vote.  The  infirmarians  then  proceed  to 
the  cells  of  the  infirm,  if  there  be  any,  and  bring  their  votes  in 
a  small  sealed  box  with  a  narrow  opening  on  the  top  to  the 
scrutineers,  who  count  and  deposit  them  in  the  chalice. 

The  scrutiny  concluded,  the  ballots  are  shaken  up  and 
counted  one  by  one  into  another  chalice,  and  should  their  num- 
ber not  correspond  with  that  of  the  cardinals  present,  immediate 
recourse  must  be  had  to  a  new  ballot.  If  the  numbers  agree, 
the  chalice  is  brought  to  a  table  before  the  altar,  the  first  scru- 
tineer takes  the  ballots  one  by  one  from  the  chalice,  unfolds  each 
sufficiently  to  read  the  name  of  the  candidate,  then  passes  it  to 
the  second,  who  in  turn  passes  it  to  the  third,  by  whom  the  name 
is  audibly  announced  to  the  cardinals.  Each  vocal  has  a  list  of 
the  cardinals'  names,  and  usually  checks  off  the  votes  as  they 
are  read. 

The  ballots  are  counted,  verified  by  the  revisors.  and  burned 
in  the  presence  of  the  cardinals.  The  so-called  veto  or  "Exclu- 
siva"  against  certain  cardinals,  occasionally  exercised  in  the 
past  by  the  powers  of  Austria,  France  and  Spain  was  abolished 
by  the  present  discipline,  which  also  forbids  any  cardinal  either 
directly  or  indirectly  to  introduce  such  a  veto  under  penalty  of 
excommunication  reserved  in  a  special  way  to  the  future  pontiff. 
If  no  person  receives  the  necessary  two-thirds  vote,  the  cardinals 
proceed  immediately  to  another  scrutiny,  and  continue  this 
double  scrutiny  twice  a  day — in  the  morning  and  afternoon — 
until  some  one  is  canonically  elected.  When  a  candidate  receives 
exactly  two-thirds  of  all  the  votes — as  did  Benedict  XV — the 
ballot  of  the  pope-elect,  distinguishable,  like  all  the  others,  by 
a  text  of  Scripture  written  on  an  outside  fold,  is  opened  to  make 
sure  that  he  did  not  vote  for  himself,  for  to  ensure  election  a 
candidate  must  receive  a  two-thirds  vote  exclusive  of  his  own. 

If  a  candidate  received  the  two-thirds  vote,  the  cardinal  dean 
approaches  the  newly  elected  pontiff  and  asks  him  whether  he 
will  accept  the  election  and  by  what  name  he  wishes  to  be  known. 
If  he  accepts,  all  the  cardinals  arise,  and  the  canopies  of  all  the 
chairs  are  lowered,  except  that  of  the  pope,  who  is  conducted 
behind  the  altar  where  he  is  clothed  in  the  papal  garments.  Re- 
turning to  the  pontifical  chair,  the  cardinals  pay  him  the  first 
homage  by  kissing  his  foot  and  then  his  hand ;  they  in  turn 
receive  the  kiss  of  peace.  The  cardinal  dean  places  upon  his 
finger  the  fisherman's  ring.  These  ceremonies  over,  the  senior 
cardinal  deacon  proceeds  to  the  loggia  of  St.  Peter's  facing  the 
great  piazza,  and  then  announces  to  the  assembled  multitude  the 


CANONICAL    ELECTIONS  107 

glad  tidings  of  the  election.  The  populace  then  enters  the  great 
basilica,  where  from  the  elevated  loggia  the  new  pontiff  gives 
his  first  Apostolic  Blessing  Urbi  et  Orbi — to  the  city  and  the 
world. 

The  person  thus  elected,  even  though  not  yet  in  sacred  or- 
ders, acquires  full  jurisdiction-  over  the  universal  Church  imme- 
diately on  consenting,  and  becomes  the  Vicar  of  Christ  on  earth. 
If  not  already  a  bishop,  he  is  consecrated  at  once  by  the  cardinal 
bishop  of  Ostia,  but  this  consecration  confers  power  of  orders 
only,  not  of  jurisdiction.  If  the  pontiff  be  a  bishop,  there  takes 
place  only  the  solemn  blessing.  The  coronation,  a  mere  cere- 
monial act,  is  received  from  the  hands  of  the  senior  cardinal  dea- 
con on  the  following  Sunday  or  holyday,  from  which  date  the 
years  of  the  pontificate  are  computed.  The  final  act — omitted 
since  1870 — is  the  formal  taking  possession  of  the  Lateran 
Basilica,  the  cathedral  church  of  the  Roman  Pontiff,  to  which 
formerly  he  proceeded  in  solemn  procession. 

II 
Method  of  Selecting  Bishops  in  the  United  States 

On  July  25,  1916,  the  Sacred  Consistorial  Congregation  pre- 
scribed the  following  legislation  for  proposing  candidates  for 
the  episcopacy  in  the  United  States.  At  the  beginning  of  the 
Lent  of  1917,  and  thereafter  every  two  years  at  the  same  time, 
each  bishop  shall  indicate  to  his  metropolitan  the  names  of  one 
or  two  priests,  whom  he  considers  worthy  and  fit  for  the  epis- 
copal ministry.  Priests  of  another  diocese  or  province  may  be 
proposed,  but  it  is  required  sub  gravi  that  those  proposed  be 
known  personally  and  intimately  by  the  person  who  proposes 
them.  Together  with  the  name  of  the  candidate,  his  age,  birth- 
place, present  residence,  and  principal  office  shall  be  indicated. 

The  archbishops  and  bishops,  previous  to  their  own  selec- 
tion, shall  ask  of  the  diocesan  consultors  and  permanent  rectors 
the  name  of  some  priest  whom  they  deem  worthy  and  fit  beyond 
others  for  the  episcopal  office.  This  interrogation  shall  not  be 
made  in  an  assembly,  but  separately  to  each,  and  enjoining  on 
each  sub  gravi  the  obligation  of  secrecy,  and  of  destroying  all 
correspondence  on  the  matter.  This  advice  must  not  be  dis- 
closed, except  perhaps  at  the  meeting  of  the  bishops,  of  which 
we  shall  speak  later. 


108  CANONICAL    ELECTIONS 

The  bishops  may  consult  other  prudent  men,  even  of  the 
regular  clergy,  concerning  the  proposal  of  candidates  or  the  ob- 
taining of  information  as  to  their  qualifications.  They  may,  but 
are  not  bound,  to  follow  any  advice  received,  for  they  shall  have 
to  render  an  account  to  God  alone  in  this  matter.  And  to  no 
other  person  besides  the  archbishop  shall  they  make  known  the 
name  or  names  they  themselves  propose. 

On  receiving  from  his  suffragans  the  names  of  their  candi- 
dates, the  archbishop  shall  add  his  own,  arranging  all  in  alpha- 
betical order,  but  making  no  mention  of  those  who  proposed 
them.  He  then  dispatches  a  list  of  the  names  to  the  different 
suffragans,  so  that  they  may  make  inquiries  about  the  qualifica- 
tions of  those,  whom  they  do  not  know  personally  and  with  cer- 
tain knowledge.  These  inquiries  are  to  be  made  with  the  utmost 
secrecy,  and  should  there  arise  a  danger  of  the  purpose  of  the 
investigation  becoming  public,  they  are  to  be  dropped. 

After  Easter,  on  a  day  and  at  a  place  to  be  appointed  by  the 
archbishop,  all  the  provincial  bishops  shall  assemble  with  their 
metropolitan  to  select  the  names  of  those,  whom  they  wish  to 
propose  to  the  Holy  See  for  the  episcopal  ministry.  They  are  to 
congregate  without  formality,  as  to  a  friendly  gathering,  that 
they  may  not  attract  attention  or  excite  curiosity,  especially  of 
newspapers  and  periodicals.  Then,  having  invoked  the  divine 
assistance,  every  one,  including  the  archbishop,  shall  take  an  oath 
with  hand  on  the  Holy  Gospels  to  observe  secrecy,  so  that  the 
bond  by  which  all  are  bound  may  be  the  more  sacred.  This  so- 
lemnity over,  the  regulations  for  conducting  an  election  shall  be 
read. 

One  of  the  bishops  present  having  been  chosen  as  secretary, 
a  moderate  discussion  takes  place,  so  that  the  more  worthy  and 
suitable  of  those  proposed  may  be  selected.  The  very  importance 
of  the  matter  urgently  demands  that  the  discussion  be  held  and 
all  things  done  as  if  Christ  Himself  were  present  and  directing 
the  affair,  to  the  exclusion  of  every  human  consideration,  but 
with  discretion  and  charity,  and  with  consideration  only  for  the 
glory  of  God,  for  the  supreme  good  of  the  Church,  and  the  salva- 
tion of  souls.  The  piety  and  religious  obligations  of  all  the  prel- 
ates require  that  the  proceedings  be  thus  conducted. 

The  candidates  should  be  of  mature  but  not  too  advanced 
age,  manifestly  prudent  in  their  ministerial  work,  extraordinarily 
sound  in  doctrine,  devoted  to  the  Holy  See,  but  above  all  distin- 
guished for  their  exemplary  lives.  Their  business  ability,  per- 
sonal status,  natural  disposition  and  health  must  also  be  consid- 


CANONICAL    ELECTIONS  109 

ered.  In  a  word  it  must  be  seen  whether  they  possess  all  the 
qualities  required  of  a  good  pastor  to  rule  God's  people  with 
profit  and  edification. 

When  the  discussion  has  been  closed  by  the  archbishop,  tVe 
scrutiny  then  takes  place.  Those  whom  the  bishops  unanimously 
think  should  be  removed  from  the  list  of  candidates  are  not  to 
be  voted  on ;  the  others — even  those  most  highly  approved,  shall 
be  subjected  to  scrutiny  by  secret  ballot,  beginning  with  the 
first  candidate  in  alphabetical  order.  The  archbishop  and  all  the 
bishops  shall  be  given  for  each  candidate  three  balls  or  pebbles, 
one  white,  another  black,  and  a  third  of  some  other  color.  The 
first  shall  signify  approbation,  the  second  disapprobation,  the 
third  abstention  from  voting.  Each  prelate  beginning  with  the 
archbishop  shall  deposit  in  a  suitably  prepared  urn  the  ball  which, 
before  God  and  under  grave  obligation  of  conscience,  he  con- 
siders he  should  cast  for  the  priest  who  is  being  voted  on;  the 
other  two  balls  shall  be  dropped  secretly  into  another  urn.  The 
scrutiny  over,  the  archbishop  assisted  by  the  secretary  shall  in 
the  presence  of  all  count  the  balls,  whatsoever  their  color,  and 
consign  the  result  to  writing.  Those  who  have  been  approved 
with  full  or  an  equal  number  of  votes  may,  on  request  of  a  bishop, 
be  submitted  to  a  fresh  scrtiny  to  decide  which  of  them  is  to  be 
preferred.  Each  prelate  shall  write  the  name  of  his  choice  on  a 
ballot,  and  place  it  in  the  urn,  and  these  shall  be  examined  in  the 
same  manner  as  were  the  balls. 

Although  the  Holy  Father,  on  the  vacancy  of  a  see,  reserves 
to  himself  to  ask  counsel  of  the  bishops  or  Apostolic  Delegate, 
so  that  he  may  select  the  one  best  fitted  to  govern  the  diocese  in 
question,  still  the  assembled  bishops  are  free,  nay  are  advised,  to 
indicate  at  least  generically  which  candidates  are  best  suited  for 
particular  dioceses. 

The  secretary  shall  carefully  note  down  all  that  was  said  and 
done  at  the  meeting,  and  before  the  bishops  separate  he  shall  read 
and  submit  to  their  approval  what  he  has  written  concerning  the 
names  proposed,  the  qualifications  of  the  candidates,  and  the 
votes  they  have  obtained.  A  copy  of  the  acts,  signed  by  the  arch- 
bishop, secretary,  and  other  bishops  present,  shall  be  transmitted 
in  the  safest  way  possible  to  the  Sacred  Congregation  by  the 
Apostolic  Delegate.  The  acts  themselves  shall  be  preserved  by 
the  archbishop  in  the  most  secret  archiepiscopal  archives,  but 
must  be  destroyed  after  a  year,  or  even  before  should  there  arise 
a  danger  of  the  violation  of  secrecy. 


110  CANONICAL    ELECTIONS 

The  decree  closes  with  the  statement  that  both  on  the  oc- 
casion of  proposing  a  candidate  or  on  the  vacancy  of  a  see — 
especially  one  of  greater  importance — the  bishops  may  always 
have  recourse  to  the  Sacred  Congregation  or  to  the  Holy  Father 
himself,  if  they  wish  to  give  more  precise  information. 

If  at  the  beginning  of  Lent  1917,  or  in  any  of  the  biennial 
periods  a  bishop  should  be  unable  to  propose  names  of  candidates 
or  to  assist  at  the  assembly  of  bishops,  the  coadjutor  with  right 
of  succession  may  propose  the  names  and  take  part  in  the  sub- 
sequent deliberations,  not  however  the  auxiliary.  Should  the  dio- 
cese be  vacant  no  names  are  to  be  proposed,  since  the  right  to 
propose  is  granted  to  the  bishop  only,  and  not  to  the  administra- 
tor. If  at  the  same  periods  the  metropolitan  should  be  unable  to 
preside  at  the  convention  of  the  bishops,  he  shall  notify  the  Apo- 
stolic Delegate,  who  will  appoint  the  senior  bishop  to  attend  to 
the  functions  of  the  archbishop.  In  the  vacancy  of  the  metro- 
politan see,  the  senior  bishop  himself  shall  obtain  the  required 
authorization  from  the  Apostolic  Delegate. 

J.  M.  J.  D. 


SOURCES  AND  BIBLIOGRAPHY 

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No.  2 


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Deus  Lux  Mea 


TITULI 


quos  ad  Doctoratus  Gradum  in 


JURE  CANONICO 


APUD 
UNIVERSITATEM  CATHOLICAM  AMERICAE 


Consequcndum  Publice  Propugnabit 


DANIEL  MICHAEL  GALLIHER 

Sacerdos  Ordinii  Fratrum  Praedicatorum 
Juris  Canonici  Licentiatus 


HORA  DC  A.  M.  DIE  VI  JUNII  A.  D.  MCMXVII 


CANONICAL    ELECTIONS  115 

I.  De  Vi  Juridica  Corporis  Juris. 
II.  De  Domicilio  et  Quasi-Domicilio. 

III.  De  Ruthenis  in  Statibus  Foederatis  Americae  Sep- 

tentrionalis. 

IV.  De  Incardinatione  et  Excardinatione. 
V.  De  Potestate  Ordinis  et  Jurisdictionis. 

VI.  De  Privilegio  Fori. 
VII.  De  Coelibatu  Clericorum. 
VIII.  De  Litteris  Testimonialibus  et  Dimissorialibus. 
IX.  De  Romani  Pontificis  Electione. 
X.  De  Cardinalium  Origine,  Creatione  ac  Numero. 
XI.  De  Sacra  Congregatione  Sancti  Officii. 
XII.  De  Tribunali  Sacrae  Romanae  Rotae. 

XIII.  De  Modo  Recurrendi  ad  Sacras  Congregationes. 

XIV.  De  Romani  Pontificis  Delegatis. 

XV.  De  Metropolitis  ac  de  eorum  Potestate. 
XVI.  De    Electione    Episcoporum   in    Statibus    Foederatis 
Americae  Septentrionalis. 
XVII.  De    Relationibus    inter    Episcopos    et    Regulares    in 
Statibus  Foederatis  Americae  Septentrionalis. 
XVIII.  De  Jure  Episcopi  Ordanandi  Religiosos. 
XIX.  De  Vicario  Generali. 
XX.  De  Vicario  Capitulari. 
XXI.  De  Novitiatus  Regimine. 
XXII.  De  Distinctione  Matrimonii  inter  Fideles. 

XXIII.  De  Impedimento  Mixtae  Religionis  et  Disparitatis 

Cultus. 

XXIV.  De  Impedimento  Voti. 
X^CV.  De  Impedimento  Affinitatis. 

XXVI.  De  Impedimento  Impotentiae. 
XXVII.  De  Impedimento  Criminis. 
XXVIII.  De  Impedimento  Vis  et  Metus. 
XXIX.  De  Decreto  "Ne  Temere." 

XXX.  De  Dispensationibus  Matrimonialibus. 
XXrXI.  De  Convalidatione  Matrimonii; 
XXXII.  De  Sanatione  in  Radice. 

XXXIII.  De  Privilegio  Paulino. 

XXXIV.  De  Transactionibus. 
XXXV.  De  Arbitris. 

XXXVI.  De  Foro  Competenti. 
XXXVII.  De  Judice. 
XXXVIII.  De  Promotore  Justitiae. 
XXXIX.  De  Judice  Delegate 


116  CANONICAL    ELECTIONS 

XL.  De  Actore  et  Reo. 
X.LI.  De  Advocatis. 
XLII.  De  Actione  Rescissoria. 
XLIII.  De  Actione  Reconventionali. 
XLIV.  De  Cumulo  et  Extinctione  Actionum. 
XLV.  De  Introductione  et  Extinctione  Instantiarum. 
XLVI.  De  Libello. 
XLVII.  De  Citatione. 
XLVIII.  De  Litis  Contestatione. 
XLIX.  De  Probationibus. 
L.  De  Testibus. 
LI.  De  Instrumentis. 
LII.  De  Praesumptionibus. 
LIII.  De  Causis  Incidentibus. 
LIV.  De  Sententia. 
LV.  De  Appellationibus. 
LVI.  De  Re  Judicata. 
LVII.  De  Executione  Sententiae. 
LVIII.  De  Restitutione  in  Integrum. 
LIX.  De  Processu  Criminali. 
LX.  De  Processu  Matrimoniali. 


Vidit  Sacra  Facultas : 

Daniel  I.  Kennedy,  O.  P.,  S.  T.  M.,  p.  t.  Decanus. 
Franciscus  I.  Coeln,  Ph.  D.,  p.  t.  a  Secretis. 
Vidit  Rector  Universitatis, 

•%•  Thomas  I.  Shahan,  S.  T.  D. 


VITA 

Daniel  Michael  Galliher,  the  thirteenth  son  of  Michael  and 
Brigid  Galliher,  was  born  on  August  11,  1883,  at  Hinsdale,  in 
the  Berkshire  Hills  of  Massachusetts.  His  early  studies  were 
made  in  the  public  schools  of  his  native  town,  and  his  higher 
classical  education  was  received  at  Saint  Laurent  College,  Mont- 
real, Canada.  He  was  graduated  in  1909,  and  in  September  of 
that  year  entered  the  Order  of  Friars  Preachers  at  Somerset, 
Ohio,  where  he  made  his  religious  profession  on  October  3,  1910. 
Thence  he  was  sent  to  the  Dominican  House  of  Studies,  at  the 
Catholic  University,  Washington,  D.  C,  to  pursue  the  regular 
philosophical  and  theological  course  prescribed  by  his  Order. 
Here  he  was  ordained  to  the  priesthood  on  June  23,  1915,  by  the 
Most  Reverend  John  Bonzano,  D.  D.,  Delegate  Apostolic.  While 
at  the  University,  Father  Galliher  followed  courses  in  Canon  Law 
under  Doctor  Bernardini,  Mediaeval  History  and  French  under 
Doctors  Robinson  and  Teillard,  respectively. 


COLUMBIA  UNIVERSITY 


0035519100 


NOT 


w        dW 


